G. L. c. 60, §§ 9-12 inc.] times open to examination by the auditor of such town or any other agent thereof duly authorized therefor. The collector shall, on demand by the mayor, aldermen or selectmen, exhibit to them or to any persons whom they designate, at any time during ordinary business hours, the books, accounts and vouchers relating to taxes. committed to him for collection and to his receipts and payments on account of taxes; and they, or the persons designated by them, shall have full opportunity to examine said books, accounts and vouchers, and to make copies and extracts therefrom. SECTION 9. A collector, within three months after his resignation of, or retirement or removal from, the office of collector, shall deposit with the clerk of the town where he held such office all his accounts, records and papers, except his warrant, which relate to the assessment and collection of taxes therein, and, when all the taxes which have been committed to him have been collected or abated, or, in any event, at the end of three years from the date of their commitment to him, he shall so deposit all such accounts, records and papers and his warrant. SECTION 10. The executor or administrator of a collector or former collector shall, within three months after his appointment, deposit all accounts, records, papers or unsettled tax lists coming into his possession, relating to the assessment and collection of taxes, with the clerk of the town to which they pertain; and any other person into whose possession, upon the death, resignation, retirement or removal from office of a collector such accounts, records, papers or unsettled tax lists may come, shall forthwith deposit them with the clerk of such town. SECTION 11. If the collector has an office for the deposit of records and the transaction of his official business, the accounts, records and papers otherwise required to be deposited with the town clerk shall be deposited in said office. SECTION 12. A town clerk, or collector, having knowledge of any accounts, records or papers relating to taxes in his town which should be in his custody, shall demand them of any person having them, who shall forthwith deliver them to him. The penalties for violation of the last three sections are set forth in another portion of the statutes.' 1 G. L. c. 60, § § 100-102 inc., infra page 412. [G. L. c. 60, § 13 Bond of Collector SECTION 13. The collector shall give bond to the town for the faithful performance of his duties, in a sum and with sureties approved by the selectmen or by the mayor and aldermen. The form of the bond shall be approved by the commissioner. The statutes elsewhere provide that the selectmen shall upon approval of the collector's bond give written notice thereof to the assessors;1 that the assessors shall not commit a tax list to the collector until his bond has been approved; and that unless the collector gives bond within ten days after his election or appointment the selectmen may declare his office vacant and appoint another in his place.3 It is no defence to an action on a collector's bond based on a shortage in his accounts that the shortage was due to theft of money from the collector without fault on his part. In such an action it is not open to the sureties on the collector's bond to show that the principal was not lawfully appointed collector, at least when the action is based on failure to account for money actually collected, as they are estopped by the recitals in the bond; and the sureties of a tax collector who has actually collected the taxes cannot set up informalities in the tax list as an excuse for his not turning over the money to the town." Ordinarily when the same person holds the office for several successive years and gives a new bond each year, the bonds are substitutional and not cumulative, and after a new bond has been approved after a new election, there is no further liability on the old bond for subsequent defaults. When however there has been a shortage for several successive years and the collector applies money collected during one year to taxes collected by him the previous year and not turned over to the town, the sureties on the bond for the later year are liable for the deficit in that year thus caused, if the amount so paid was received in good faith by 1 G. L. c. 41, § 20, supra page 151. 2 G. L. c. 59, § 53, supra page 280. 3 G. L. c. 41, § 40, supra page 159. 4 Hancock v Hazard, 12 Cush. 112 (1853). Great Barrington v. Austin, 8 Gray 444 (1857); Wendell v. Fleming, 8 Gray 613 (1857). 6 Sandwich v. Fish, 2 Gray 298 (1854). 7 Newburyport v. Davis, 209 Mass. 126 (1911). G. L. c. 60, § 13] the town. Negligence of the town officials in failing to discover the defalcations of the collector does not discharge the sureties on his bond. Failure to disclose past irregularities known to the town to persons about to become sureties would avoid their liability;10 but this ground of defense does not extend to a case in which the information is no more than indefinite rumors of misconduct not pertaining to financial matters;11 and the sending of the annual town book to the sureties containing the reports of the auditor and the treasurer, the false statements in which led the sureties to take no action against the collector, does not discharge the sureties.12 False statements made by the collector himself to induce persons to become his sureties do not affect the right of the town to hold the sureties.13 Payments made by the collector on negotiable orders drawn by the selectmen on the town cannot be credited to the collector when he has negotiated the same orders again;1 but when the treasurer without knowledge of the sureties allows the collector to keep money collected to pay his own debts, it may operate to discharge the sureties.15 A material alteration in the bond without the consent of the sureties avoids their liability.'" 16 If a collector voluntarily gives a bond to the town to secure. his faithful discharge of the duties of his office and the bond is accepted, it is a valid bond without any further evidence of the approval by the selectmen of the sum or the sureties." If a bond fails to comply with the provisions of the statute the sureties may nevertheless be liable on it at common law.18 When a collector has been removed, he and his sureties are liable for taxes committed to him which he failed to collect through remissness, although his successor has also given bond 8 Colerain v. Bell, 9 Met. 499 (1845); Sandwich v. Fish, 2 Gray 298 (1854); Egremont v. Benjamin, 125 Mass. 15 (1878); Hudson v. Miles, 185 Mass. 582 (1904). 9 Winthrop v. Soule, 175 Mass. 400 (1900); Hudson v. Miles, 185 Mass. 582 (1904); Newburyport v. Davis, 209 Mass. 126 (1911). 10 Hudson v. Miles, 185 Mass. 582 (1904). 11 Hudson v. Miles, 185 Mass. 582 (1904). 17 Wendell v. Fleming, 8 Gray 613 (1857). 18 Sweetser v. Hay, 2 Gray 49 (1854); Hudson v. Miles, 185 Mass. 582 (1904). [G. L. c. 60, §§ 14, 15 obliging him to collect these same taxes.19 In a suit upon a bond given by a collector of taxes it is sufficient if the suit be authorized by the town treasurer; the authority or consent of the town so far as the same is necessary may be presumed.20 The aldermen cannot be compelled to approve the bond of a collector unless the sureties are satisfactory to them; but they cannot refuse to approve a bond on the ground that they do not recognize the person presenting it as collector if he was in fact lawfully elected to that office.21 Special Collector SECTION 14. In towns, not cities, if, at the expiration of three years from the date of the commitment of tax lists and warrant to a collector of taxes, any taxes remain uncollected and recovery cannot be made upon the bond of the collector of the amount of such uncollected taxes, the selectmen shall appoint the collector of taxes for the current year or some other person as special collector thereof. He shall furnish a satisfactory bond for the faithful performance of his duties, in such sum as the selectmen require, in a form to be approved by the commissioner. Fees SECTION 15. The collector shall, unless removed from office or unless his tax list has been transferred to his successor, complete the collection of the taxes committed to him, notwithstanding the expiration of his term of office. The following charges and fees, and no other, when accrued, shall severally be added to the amount of the tax and collected as a part thereof: 1. For an arrest, one dollar and actual traveling expenses incurred in making such arrest; 2. For a summons, twenty cents; 3. For the written demands provided for by law, twenty-five cents; 4. For a warrant to distrain or arrest, fifty cents; 5. For preparing advertisement of sale, fifty cents for each parcel of real estate included in the advertisement; 6. For advertisement of sale in newspapers, the cost thereof; 7. For posting notices of sale, fifty cents for each parcel of real estate or lot of goods included in the notice; 19 Colerain v. Bell, 9 Met. 499 (1845). 20 Blackstone v. Taft, 4 Gray 250 (1855). 21 Keough v. Aldermen of Holyoke, 156 Mass. 403 (1902). G. L. c. 60, § 15] 8. For distraining goods, one dollar and the cost thereof; 9. For selling goods distrained, the cost thereof; 10. For affidavit, twenty-five cents for each parcel of land included therein; 11. For recording affidavit, fifty cents for each parcel of land ...cluded therein; 12. For preparing deed, two dollars; 13. For each hour's time actually expended in selling as certified by him under section fifty-one, thirty cents; 14. For service of demand and notice under section fifty-three, if served in the manner required by law for the service of subpoenas on witnesses in civil cases, fifty cents and travel as allowed by chapter two hundred and sixty-two. The collector shall pay over to the town treasurer, or account to him for, all charges and fees collected by him or by a constable, sheriff or deputy sheriff under his direction; but the town shall reimburse or credit him for all expenses incurred by him hereunder, including the lawful charges and fees of constables, sheriffs and deputy sheriffs paid or credited by him for collecting taxes. Before the charges and fees of a collector were fixed by statute, it was held that he was entitled to the same fees as a sheriff for similar services in collecting executions. If however at any intermediate stage in the proceedings the tax is paid to the collector he is not entitled to the fees for the steps that would have been necessary to complete the collection of the tax by process of law.2 A sale for non-payment of taxes is void if fees in excess of those allowed by law are charged; if, for example, the sale was advertised in two newspapers instead of one newspaper and the expense of the advertisement added to the amount of the tax the sale would be invalid. So also the inclusion of the proper fee for the performance of an act which under the circumstances of the case was not required by law invalidates the sale.* Until 1918 it was a subject of much dispute whether the fees established by this section belonged to the city or town or to the collector, but in that year legislation was enacted making 1 Howard v. Proctor, 7 Gray 128 (1856). ✦ Koch v. Austin, 225 Mass. 215 (1916). |