[G. L. c. 60, §§ 32-34 inc. point a time and place for the examination of the debtor, and shall direct the jailer to cause the debtor to be present at the examination. The notice required by section twenty-three of chapter two hundred. and twenty-four to be given to the creditor may be given to any one of the assessors or to the collector of the town where the tax was assessed, any of whom may appear at the examination and do all things which a creditor might do upon an arrest or execution. If a debtor is unable to pay such tax, he may be discharged in the same manner as if committed upon an execution. SECTION 32. The collector shall be liable for the tax and the charges of imprisonment of a person discharged, unless he arrested and committed such person within one year after the tax was committed to him for collection, or unless he shall be exonerated therefrom by the town to which the tax is due. The "charges of imprisonment" for which the collector may be liable if the person assessed is discharged from jail do not include the support of the prisoner while in custody.1 Collector may Require Aid SECTION 33. A collector who is resisted or impeded in the exercise of the duties of his office may require any suitable person to aid him. SECTION 34. If a tax assessed upon a person remains unpaid for fourteen days after demand therefor, the collector may issue his warrant to the sheriffs of the several counties, or their deputies, or to any constable or deputy collector of taxes, directing them and each of them to distrain the property or take the body of the person assessed and to proceed as required of collectors in like cases; but a collector of taxes who issues a warrant for the arrest of a person for non-payment of taxes, or the officer to whom he commits the warrant, may at his discretion, after the service of the warrant, allow such person to go free for a period not exceeding fourteen days after said service, at which time, if said person does not pay his tax with all fees and charges due thereon, including one dollar for service of said warrant and five cents for each mile traveled by said officer in the 1 Townsend v. Wallcutt, 3 Met. 152 (1841). G. L. c. 60, § 34] performance of said collection, said officer shall then arrest the said person on the aforesaid warrant, and commit him to the jail of the county where he makes the arrest. The warrant shall run throughout the commonwealth, and any officer to whom it is directed may serve it and apprehend the person in any county. A warrant issued under this section may be signed by the collector or his deputy; and, if the warrant is sealed by an impression seal, a facsimile of the signature of the collector shall have the same validity as his written signature. This statute should be carefully distinguished from section ninety of the same chapter.1 The latter section provides that when the same person is serving as treasurer and collector he can issue a warrant to a sheriff or constable requiring him to collect any or all taxes, thus in a general way transferring to such officer all the active duties of a collector; the section now under consideration relates to a tax on a specified individual which has remained unpaid for fourteen days after demand and until 1888 applied only to a person assessed who had removed from the town without paying the tax. It is to be noted that under this section a collector can delegate to officers of purely local authority in other matters the power to make distress or arrest anywhere within the commonwealth, a power which it is doubtful that he may himself exercise." When a collector issues a warrant under this section it should contain recitals justifying its issuance, for such recitals would furnish the officer with conclusive evidence for his protection in acting under it. But recitals are not necessary for the validity of the warrant, and the officer is protected if he can prove the facts necessary to constitute his authority when his proceedings are called into question. If the warrant does not contain the necessary recitals, the officer is justified in refusing to serve it although the circumstances in fact made its issuance. lawful; but if he actually collects money by virtue of the warrant the absence of recitals in the warrant is no excuse for failing to turn the money over to the collector." 5 1 See infra page 393. 2 Beard v. Seavey, 191 Mass. 503 (1906). 3 Williamstown v. Willis, 15 Gray 427 (1860); Cheever v. Merritt, 5 Allen 563 (1863). 4 Cheever v. Merritt, 5 Allen 563 (1863); Sherman v. Torrey, 99 Mass. 472 (1868). 5 Williamstown v. Willis, 15 Gray 427 (1860). 6 Williamstown v. Willis, 15 Gray 427 (1860). [G. L. c. 60, § 35 The clause of this section which permits an officer to allow a delinquent to remain at liberty for fourteen days after the service of the warrant was first inserted in 1908; until then the officer had no option but to make the arrest even if he thereby prevented the person assessed from getting together the necessary funds to pay the tax. This provision unlike the rest of the section applies to action by the collector himself. SECTION 35. COLLECTION BY SUIT Action by the Collector If a tax remains unpaid for three months after commitment to the collector, he may maintain an action in his own name against the person assessed therefor in the same manner as for his own debt. The first provision authorizing a collector to maintain an action at law to recover a tax appeared in the statutes in 1785 and applied only when a person duly assessed died or removed from the town or, being an unmarried woman, married, without paying the tax. In 1859 neglect to pay the tax for one year was added to the other conditions which justified an action at law. In 1888 the period was reduced to three months and the provision as to removal was dropped. In 1889 all conditions except the non-payment of the tax for three months were omitted and the statute was extended to include re-assessments. In the Revised Laws the statute was put into the concise wording in which it stands at present without any apparent change in its meaning. No right of action for the collection of a tax exists at common law; and no action can be maintained except upon the conditions prescribed by the statute.1 No cause of action arises in favor of the collector until three months have expired,2 and consequently the action is not barred by limitations until six years and three months have elapsed from the time the tax was committed to him.3 The "action" which the statute provides may be maintained 1 Crapo v. Stetson, 8 Met. 106 (1844); Harrington v. Glidden, 179 Mass. 486 (1901). 2 Ricker v. Brooks, 155 Mass. 400 (1892). 3 Harrington v. Glidden, 179 Mass. 486 (1901). G. L. c. 60, § 35] by the collector is not restricted to the ordinary forms of actions at law, but the word is used in its comprehensive sense as meaning the pursuit of a right in a court of justice without regard to the form of legal proceedings, and consequently includes a bill in equity or other process provided the person assessed can be properly made a party defendant. Until 1889 the statute specifically provided for an action of contract and for trustee process, only. In 1889 it was enacted that the collector might "sue or otherwise proceed in court" and it is not to be supposed that the present statute was intended to diminish his rights and powers. It is well settled that a tax upon real estate may be collected by suit, as well as one upon personal property, although occasions do not often arise when it is desirable to resort to this remedy to collect a tax upon real estate, as the sale of the land is considered a more effective means. When land properly assessed is subsequently divided and the tax apportioned, a person who purchases a portion of the land after the assessment is not personally liable for the tax. 5 The principle that when assessors are acting within their jurisdiction their acts cannot be collaterally impeached is applicable in actions by a collector for the amount of the tax.' If a taxpayer complains that he is over-assessed his only remedy 4 Thus in Boston v. Turner, 201 Mass. 190 (1909) it was held that a collector may maintain a bill in equity to enforce a trust against the common law assignee of the person assessed, when the assignment was in trust for the payment of claims. In Felker v. Standard Yarn Co., 148 Mass. 226 (1889) it was held that a collector may maintain a bill in equity against the officers of a corporation for the amount of a tax on the corporation when they have been guilty of conduct which under the statutes renders them personally liable for the "debts" of the corporation. In Warr v. Collector of Taunton, 234 Mass. 279 (1920), it was held that a collector might maintain a bill in equity under G. L. c. 214, § 3, cl. 8 to reach and apply in payment of a tax stock in domestic corporations belonging to the person assessed. 5 Thus it was said by the court in Richardson v. Boston, 148 Mass. 508 (1889) that when land was taken by the commonwealth after the date as of which the tax was assessed, the tax could be collected of the owner by suit. See also Hayden v. Foster, 13 Pick. 492, 495 (1833); Sherwin v. Boston Five Cents Savings Bank, 137 Mass. 444 (1884); Dunham v. Lowell, 200 Mass. 468 (1909). • Rogers v. Gookin, 198 Mass. 434 (1908). 7 In an action of contract to recover a tax the persons assessed cannot defend by impeaching the validity of the election of the assessors, if the tax was assessed by persons who acted under color of an election by the town as evidenced by its records and who took an official oath as assessors. Sudbury v. Heard, 103 Mass. 543 (1870). 8 [G. L. c. 60, § 36 is a petition for abatement, and the same principles which prevent a person legally assessable from going behind the assessment and asking the court to revise the amount in an action of trespass against the assessors or in an action of contract for money had and received against the city or town preclude him from making a similar contest when he is the defendant in an action of the kind now under discussion.10 There are certain exceptions and qualifications to this principle which have been developed and enunciated most thoroughly in actions of contract against a city or town, in which the principle itself has been most frequently called into play; but the exceptions and qualifications are equally applicable to actions in which the collector is the plaintiff.12 11 Collection from the Estates of Deceased Persons and of Insolvents and Bankrupts SECTION 36. If a person assessed for a tax dies or becomes insolvent before the payment thereof, or if a tax is assessed upon the estate of a deceased person, the executor, adminsistrator or assignee shall, if a demand has been made on him therefor, forthwith on receipt of any money applicable to the payment of the tax, pay the same, and in default shall be personally liable therefor as for his own tax. When a person assessed dies without paying his tax and an executor or an administrator is appointed, the collector cannot maintain an action brought more than one year after the date of the executor's or administrator's bond, for the collector having the like remedy as for his own debts is subject to the general provisions of law applying to other creditors; but when the tax is assessed upon the property of the deceased after his death, 8 G. L. c. 59, § 87, supra page 314. 10 Davis v. Macy, 124 Mass. 193 (1878); Pierce v. Eddy, 152 Mass. 594 (1891); Harrington v. Glidden, 179 Mass. 486 (1901); Attorney General v. Laycock. 221 Mass. 146 (1915); Collector of West Bridgewater v. Dunster, 231 Mass. 291 (1918). 11 Infra page 400. 12 Ingram v. Cowles, 150 Mass. 155 (1889); Harrington v. Glidden, 179 Mass. 486 (1901). Thus a non-resident may contest his liability to a tax on the only property within the town claimed to be taxable. Tobey v. Kip, 214 Mass. 477 (1913). 1 Rich v. Tuckerman, 121 Mass. 222 (1876). |