Thorndike v. Inhabitants of Camden

• Citation: 82 Me. 39,19 A. 95
• Parties: THORNDIKE v. INHABITANTS OF CAMDEN.
• Decision Date: 26 June 1889
• Court: Supreme Judicial Court of Maine (US)

19 A. 95

82 Me. 39

THORNDIKE

v. INHABITANTS OF CAMDEN.

Supreme Judicial Court of Maine.

June 26, 1889.

Exceptions from supreme judicial court, Knox county.

Assumpsit by Larkin Thorndike against the inhabitants of Camden. The case was heard on the following agreed statement of facts:

"This is an action for the recovery of an amount voted by the town to be paid to the plaintiff, and interest on same.

"It is agreed that plaintiff was collector of taxes of said town for the year 1873, and that among the various taxes intrusted to him for collection for that year was one against D. Knowlton & Co. amounting to more than three hundred dollars; that he failed to collect of them a portion of said tax, amounting to three hundred and sixteen and 6-100 dollars, except to take the note of said D. Knowlton & Co., running to himself; that said note was never paid to him, or any part thereof, owing to the insolvency of said D. Knowlton & Co.; that the plaintiff, supposing said note to be collectible, paid the amount of the same to the town treasurer for the said town of Camden; that he did not, as collector, attempt to enforce any portion of said tax against the real estate of said company, as the tax was assessed to D. Knowlton & Co., while the property meant to be taxed belonged to and was in the name of D. Knowlton Company, a corporation, there being no such party as D. Knowlton & Co.; that in 1885, at the annual meeting of said defendant town, on an article of the following tenor, to-wit:

"'Art. 31st. To see if the town will vote to refund to Larkin Thorndike so much of the tax assessed to D. Knowlton & Co. in 1873 as was paid to the town, but never collected, amt. to three hundred sixteen dollars and six cents, and interest on same; also, what sum of money they will vote to raise to pay the same,'—it was voted as follows:

"'Art. 31st. Voted that the selectmen be authorized to pay Larkin Thorndike the sum of three hundred dollars (300,) the same to be raised by assessment;' that this sum was early in the year 1885 demanded of the selectmen of said town, but has never been paid to the plaintiff, nor assessed by said town. Luke Upham protested against the payment of said sum, which was recorded. The taxes on the property of D. Knowlton Company, corporation, for years 1872 and 1877 were assessed in the name of D. Knowlton & Co., and paid to collector."

Judgment for plaintiff, and defendants except.

J. H. Montgomery, for plaintiff. T. R. Simonton, (T. A. Hunt, of counsel,) for defendants.

EMERY, J. This case is presented by the defendants' exceptions to the ruling of the presiding justice awarding judgment for plaintiff on an agreed statement of facts. In submitting a case upon an agreed statement, the plaintiff has the burden of stating all the facts necessary for the maintenance of his action. He must not depend on inferences. Omissions will be construed against him.

In this case we must assume that the plaintiff was the duly elected and qualified collector of taxes in the defendant town for the year 1873; that he had a legal and sufficient warrant to collect a tax of $316, legally assessed against a party liable to taxation in said town, and styled in the warrant, "D. Knowlton & Co.;" that he made no effort to collect said tax further than to illegally permit them to give their note instead of the money for their tax; that he took the note as money, and accounted for it as money to the town treasurer; that 12 years afterwards, in 1885, the note not having been paid, the town voted, under proper articles in the warrant, to pay him $300 in consideration of the premises, the said sum to be raised by assessment.

Has the town the power to impose a tax for such a purpose? Clearly not, unless the plaintiff's claim is incident to, or connected with, the exercise by the town of its legal powers. A town is not a business or a charitable corporation. It is simply a political organization, created as a convenient agent for the performance of certain governmental duties and purposes. Its powers are almost entirely political, and are properly limited to its duties. It has only such control over the citizen, and his money or property, as is expressly granted to it, or is necessary to the performance of its duty to the public. Indeed, a town is only a trustee for the public. It does not own the money in its treasury, nor the municipal property generally, but only holds them in trust for the public, and subject to public control through the legislature. Dill. Mun. Corp. § 61; Meriwether v. Garrett, 102 U. S. 472.

The narrow limit of the taxing power of a town, and of its power over money paid into its treasury from other sources than town taxes, is illustrated by many decided cases. In the absence of a special statute, a town cannot raise money for purposes of local defense against an invading enemy, (Stetson v. Kempton, 13 Muss. 272;) nor to build places of amusement for its inhabitants, (Id.;) nor to abate taxes, (Cooley v. Granville, 10 Cush. 56;) nor to celebrate an anniversary, (Tash v. Adams, Id. 252;) not even "Fourth of July," (Hood v. Lynn, 1 Allen, 103;) nor to provide uniforms for a local military company, (Claflin v. Hopkinton, 4 Gray, 502;) nor to obtain a city or town charter, (Frost v. Belmont, 6 Allen, 152;) nor to oppose division of the town, (Coolidge v. Brookline, 114 Mass. 592; Westbrook v. Deering, 63 Me. 231;) nor to pay a private fire company, (Greenough v. Wakefield, 127 Mass. 275;) nor to build a court-house, (Bachelder v. Epping, 28 N. H. 354;) nor to build a county jail, (Drew v. Davis, 10 Vt. 506;) nor to build a bridge in another town, (Concord v. Boscawen, 17 N. H. 465;) nor to aid a private cemetery association, (Luques v. Dresden, 77 Me. 186.) It cannot divide among its inhabitants money received from the state, (Hooper v. Emery, 14 Me. 375;) nor assess a tax to pay back money voluntarily paid into its treasury, to aid in relieving the town from military draft, (Perkins v. Milford, 59 Me. 315.)

Within its sphere, a town may exercise some discretion as to what claims to pay or to contest. In the matter of schools, roads, paupers, fire-engines, town-houses, etc., matters which towns are created to care for, the town may determine what claims on these accounts it will pay. The claim in suit, however, arises out of matters which are not intrusted to the control of town meetings. It concerns the collection of public taxes. The statute (Rev. St. c. 3, § 46) empowers a town to raise money for specified purposes,—that is, to fix and order by vote the amount to be assessed and collected for proper town charges, but there the discretionary power of the town seems to end. The statute gives it no control over the assessment or collection of any taxes. It is true the statute requires the town to appoint the assessors and collectors of all state, county, and town taxes to be levied within its territory, but the town does this as the political agent of the state. The appointment could have been intrusted to any other agency. These officers are not corporate agents. They are public officers, owing to the public, and not to the town alone, the duties imposed by statute. Only their appointment comes from the town. Their authority is from the statute, and they cannot be controlled by the town in the execution of that authority. Desty, Tax'n, 508, 685; State v. Walton, 62 Me. 106.

No vote of the town can relieve the assessors of any part of their statute duty; nor can such vote control their action in any detail. The town cannot by vote increase, diminish, or vary the duties which the tax collector owes to the public, nor relieve him in case of his neglect, except in the very few cases where...