G. L. c. 60, §§ 92, 93]

this provision is less apparent. There is however no doubt that a state may constitutionally impose such a liability as this as a condition upon which a foreign corporation not engaged in interstate commerce is permitted to do business within its limits.

The statute has not been used frequently, if at all, against non-resident persons, and there may be greater doubts of its constitutionality as applied to them, for one state cannot constitutionally exclude residents of other states from doing business within its limits, or impose greater liability upon them than is imposed upon its own citizens.1

The provision that service may be made by leaving a copy of the petition at the place where the business is carried on is reasonable and valid, and is not repealed by a subsequent general enactment concerning the service of process upon foreign corporations.2

Appointment of Deputy Collectors

SECTION 92. The board of aldermen or selectmen may empower any officer authorized to collect taxes to appoint such deputies as he deems expedient. Any such deputy may be a woman. Such deputies shall give bond for the faithful performance of their duties in such sum as the aldermen or selectmen may prescribe and shall have the powers of collectors.

The appointment of employees of the collector of taxes of any city, except Boston,' is not subject to the regulations of the board of civil service commissioners."

Withholding Money Due Persons Owing Taxes

SECTION 93. The treasurer or other disbursing officer of any town may, and if so requested by the collector, shall, withhold payment of any money payable to any person whose taxes are then due and wholly or partly unpaid to an amount not exceeding the unpaid tax with interest and costs. The sum withheld shall be paid or credited to the collector, who shall, if required, give a written receipt therefor. The person taxed may in such case have the same remedy as if he had paid such

1 Supra, Part I, § 17.

2 Scollard v. American Felt Co., 194 Mass. 127 (1907).

1 St. 1913, c. 672.

2 G. L. c. 31, § 5.

[G. L. c. 60, §§ 94, 95 tax after a levy upon his goods. The collector's rights under this section shall not be affected by any assignment or trustee process.

Apart from the provisions of this section a city or town has not the power to set off the amount of unpaid taxes against a claim against it for money due the person assessed.1

Collector's Accounts to be Exhibited Bi-Monthly

SECTION 94. The aldermen or selectmen may require the collector once in two months to exhibit to them a true account of all money received on the taxes committed to him, and to produce the treasurer's receipts for all money paid into the treasury by him.

Personal Liability of Collector

SECTION 95. The collector shall be credited with all sums abated; with the amount of taxes assessed upon any person committed to jail for non-payment of his tax within one year from the receipt of the tax list by the collector, and who has not paid his tax; with any sums which the town may see fit to abate to him, due from persons committed after the expiration of a year; with all sume withheld by the treasurer of a town under section ninety-three; and with the amount of the taxes and charges where land has been purchased or taken by the town for non-payment of taxes. When a collector is credited with the amount of taxes assessed upon any person committed to jail for the non-payment of his tax, who has not paid his tax, said collector shall also be paid and credited with the fees and charges which have become a part of said taxes and to which he or the officer acting under his warrant is entitled.

In an action by the town against the collector, insolvency or poverty of a person assessed is no defense to the collector, if he allows a year to elapse without arresting such person;1 but if the collector is removed within a year of the time that the tax list is committed to him, such insolvency or poverty can be shown in justification. A collector de facto who has not been legally appointed is accountable to the town only for the taxes actually collected by him. If the warrant is insufficient the

1 Pierce v. Boston, 3 Met. 520 (1842); Commonwealth v. Phoenix Bank, 11 Met. 129 (1846).

1 Colerain v. Bell, 9 Met. 499 (1845).

2 Colerain v. Bell, 9 Met. 499 (1845).

3 Lincoln v. Chapin, 132 Mass. 470 (1882).

G. L. c. 60, § 95]

collector is justified in not serving it, but if he proceeds to collect any part of the tax he is accountable therefor. The defalcation of a collector may be the subject of set-off in an action by him against the town; and it is a fiduciary debt not affected by his discharge in bankruptcy." If a treasurer and collector pays his private debts with the money he has collected, using the town's checks drawn by himself, the persons who receive such checks must refund the amount thereof to the town, whether the checks are payable directly to the creditor or to the treasurer and indorsed by him."

7

An action of tort by an individual citizen against the collector for arresting his person or distraining his property in enforcing the payment of a tax is not an effectual means of contesting the validity of the proceedings for assessing the tax. If the collector is acting in pursuance of a warrant from the assessors, and the assessors have jurisdiction of the subject-matter and the process is regular on its face, the collector is not bound to examine into the legality of the previous proceedings and cannot be affected by the existence of any fact not disclosed by the warrant which deprives them of jurisdiction in the particular case, and he is protected by the warrant from liability for its execution.9

A warrant that is bad on its face is no protection to the collector; 10 but a warrant will not be vitiated by slight and technical defects;11 and it is not required to be in a precise and elaborate form.12 It need not recite the facts necessary to authorize its issuance; 13 and it is not invalid for omitting to state the steps

4 Williamstown v. Willis, 15 Gray 427 (1860).

5 Donelson v. Colerain, 4 Met. 430 (1842).

6 Morse v. Lowell, 7 Met. 152 (1843).

7 Newburyport v. Fidelity Insurance Co., 197 Mass. 596 (1908).

8 Newburyport v. Spear, 204 Mass. 146 (1910).

9 Sprague v. Bailey, 19 Pick. 436 (1837); Upton v. Holden, 5 Met. 360 (1842); Howard v. Proctor, 7 Gray 128 (1856); Eames v. Johnson, 4 Allen 382 (1862); Hubbard v. Garfield, 102 Mass. 72 (1869); Rawson v. Spencer, 113 Mass. 40 (1873); Cone v. Forest, 126 Mass. 97 (1879). A tax-warrant otherwise valid on its face, addressed to one as "constable and collector" who is authorized to act as collector at the time of its delivery to him, although not at the time it bears date, will protect him from liability for acts as collector under it. Hays v. Drake, 6 Gray 387 (1856).

10 Eames v. Johnson, 4 Allen 382 (1862).

11 Barnard v. Graves, 13 Met. 85 (1847).

12 For a fuller discussion of the form and requirements of the warrant see G. L. c. 59, § 55, supra page 280.

13 Cheever v. Merritt, 5 Allen 563 (1863); Sherman v. Torrey, 99 Mass. 472 (1868).

[G. L. c. 60, § 95 that the collector is required to take.1 If its direction to the collector is to act in violation of law, he is not liable to the person assessed if he collects the tax in accordance with law, in disregard of the warrant.15

When the collector issues a warrant to a deputy sheriff or a constable, the warrant should recite the facts necessary to authorize its issuance, but if it does not the officer may prove the facts if he can.16

17

18

The proper function of an action of tort against the collector is to act as a remedy for a violation of the provisions of law relating to the collection of taxes, and it is the only remedy for such violation; for a tax lawfully assessed but extorted from the taxpayer by unlawful methods cannot be recovered from the city or town. The collector is personally liable for arresting a person who exhibits sufficient goods on which he can levy; or for distraining and selling goods in excess of the requirements of the case;" or for any interference with individual rights which constitute a substantial departure from the requirements of the statutes prescribing his duties.20 In an action based on the collector's illegal acts his return is only prima facie evidence of his doings and may be controlled by a greater weight of evidence contradicting it." If however it is impeached by evidence of facts which would equally well justify the collector, the variance is immaterial.22

19

It would seem that when a collector by duress enforces payment of an invalid tax, at least when the circumstances are such that he is not protected by his warrant, the person paying it might recover it back in an action of contract for money had and received. As such a remedy would be less effective than 14 King v. Whitcomb, 1 Met. 328 (1840); Westhampton v. Searle, 127 Mass. 502 (1879); Leominster v. Conant, 139 Mass. 384 (1885).

15 Barnard v. Graves, 13 Met. 85 (1847).

16 Cheever v. Merritt, 5 Allen 563 (1863); Sherman v. Torrey, 99 Mass. 472 (1868). If the warrant contains no sufficient recitals and there was no authority in fact for its issuance, a sheriff who receives and detains in the county jail a person arrested by a constable is personally liable. Smith v. Keniston, 100 Mass. 172 (1868).

17 Dunbar v. Boston, 112 Mass. 75 (1873).

18 Lothrop v. Ide, 13 Gray 93 (1859); Hall v. Hall, 3 Allen 5 (1861).

19 Cone v. Forest, 126 Mass. 97 (1879); Warr v. Collector of Taunton, 234 Mass. 279 (1920).

20 Pierce v. Benjamin, 14 Pick. 356 (1833); Wilson v. Shearer, 9 Met. 504 (1845); Barnard v. Graves, 13 Met. 85 (1847).

21 Lothrop v. Ide, 13 Gray 93 (1859).
22 Barnard v. Graves, 13 Met. 85 (1847).

G. L. c. 60, §§ 96, 97]

an action of tort against the collector, because the damages would include only the amount of the tax and interest, and less certain than an action of contract against the city or town because a judgment might be more difficult to enforce, it does not seem to have been employed against city or town collectors; but it has been held that such an action would lie against an officer of the state who by duress enforced payment of a tax levied by virtue of an unconstitutional statute.23

A collector cannot be held personally liable on a contract signed by him as collector, when the parties contemplated that the obligation was the town's.24

Removal of Collector

SECTION 96. If a collector becomes insane, absconds or removes from the town or in the judgment of the aldermen or selectmen is about to so remove or is otherwise unable to discharge his duty, or if he refuses on demand to exhibit to the aldermen or selectmen his books, vouchers and accounts of collections as provided in this chapter, the aldermen or selectmen may remove him from office.

Commission of Uncollected Taxes to Collector's
Successor

SECTION 97. If a collector dies or is removed from office or if the term of office of a collector who is paid by a fixed salary expires before the collection of the taxes committed to him is completed, the assessors shall commit to his successor the list of taxes uncollected with their warrant. If the collector is his own successor he shall complete the collection of the taxes as a part of the duties of his new term of office and not as a part of the duties of his former term of office.

Whether taxes have been collected by a collector prior to his death is a fact which may be proved by any competent evidence. Proof that payment had been entered on the collector's books, or that the collector had given the taxpayer a receipt, or evidence of witnesses who saw the payment would be competent evidence; but admissions by the collector that the tax had been paid would not be competent.1

23 Cunningham v. Munroe, 13 Gray 471 (1860). An action against the col lector is the recognized method of contesting the legality of a federal tax. 24 Rogers v. French, 214 Mass. 337 (1913). 1 Lawrence v. Kimball, 1 Met. 524 (1840).