The Portland daily press., 1894-03-26
CAPTAIN BoYD's TAXES.
The Decision of Judge Gould Sustained by
the Full Bench.

1t will be remembered that in Deem
Der, 1891, the selectmen of Cape Eliza
beth, after some controversy with Cap
tain A. d. Boyd in relation to taxes,
brought suit against him in the munich
pal court of Portland to recover taxes
assessed upon his personal property and
poll tax. The decision was in favor of
Captain Boyd, and the town appealed to
the Superior court. At the December
term, 1892, the case was made up and re-
ported to the law court, to render such
judgment as the legal rights of the par
ties required. Saturday decision was
sent down in favor OF Captain Boyd.
Hon. S. c. Strout and W. R. Anthoine,
Esq, were counsel for the town and
General c. P. Mattocks for the defend
ant The following is the opinion of the
court:
Walton, i'm addition to the other
provisions for the collection of taxes le-
gally assessed, the mayor and treasurer
of any city, the selectmen of any town,
and the assessors of any plantation, to
which tax is due, may in writing direct
an action of debt to be commenced in
the name of such city, or the inhabitants
OF such town OF plantation, against the
party liable. r. s., chap. 6, sec. It's.
The question is whether a general di-
rection by the selectmen of town to
commence actions against sany and all
taxpayers who refuse or fail' to pay
their taxes, is compliance with the
statute. We think not. The power con-
ferred by this statute requires an exer-
else of Judgment and discretion. A re-
fusal to pay tax is one thing; failure
to pay is another. The former may be
the result of@willfulness or denial of
the legality of the tax. The latter may
be the result of sickness and poverty and
an utter inability to pay. In the former
case an action may be expedient; in the
latter inexpedient 1t is plain, there
fore, that Judgment and discretion are
to be exercised in determining whether or
not an action shall be commenced And
it is a familiar and well settled rule of
law that when judgment and discretion
are to be exercised. they must be exer-
cised by the persons on whom the law
has placed the power and authority to
act Their exercise cannot be trans
ferred to another. Such powers are IN
capable of delegation. ] Dillon, sect go,
and cases there cited.
The plain meaning of the statute is
that no action shall be commenced to col
lect a tax, unless its commencement is
directed by some one of the boards of
officers named in writ &. An oral direc-
ton will not be sufficient. When, in any
case, an authority is required to be con
ferred in writing, an oral authority will
not be sufficient. Such requirement is
calculated to avoid dispute respecting
the fact, and to protect towns against
hasty and inconsiderate action by their
selectmen. So held in Morrill, VS.. Dix
field, 80 Maine, 157.
And each suit, should receive a sepa-
rate consideration. A general direction
to the tax collector to commence actions
against any and all taxpayers who re-
fuse or fail to pay their taxes, is not suf-
ficient. 1t is not sufficiently specific. 1t
practically transfers to the collector the
power to determine whether or not any
particular action shall be commenced;
and this the law will not allow.
For these reasons, we hold the direc-
ton in this case insufficient, and the &C
ton improperly commenced.
Judgment for defendant.
Peters. c. j., Emery, Foster, Haskell
and WhitehOuSe, il. cOncurred