A town collector failed to collect a portion of tbe taxes committed to him. Among the uncollected were taxes upon persons and personal property, amounting to six hundred dollars, which were properly assessed, and also a large amount of taxes upon real estate, assessed under defective and illegal descriptions. The collector complains that, by this insufficient assessment of such real estate, he was deprived of one mode or arm of power by which the collection of that portion of the taxes could be enforced. Does this fact, after the collector has received a portion of both the legal and the illegal taxes, excuse him from a further collection of the legal taxes remaining unpaid ? ¥e know of no rule or policy of the law which justifies such a proposition.
We are not prepared to say, for it is not now necessary for us to decide such a question, that a collector would be obliged to accept a warrant to enforce the collection of taxes, a portion of which were defectively assessed, and not legally collectible. But we think that, when he does accept a warrant with the bills of assessment, and collects a portion of the taxes, he is under legal obligation to collect of the remainder so' much as are legally assessed. If the rule is to be otherwise, it might just as well be decided that collectors may collect taxes or not, as they please; for we well know that scarcely a city or town in this state, if •even one, has ever placed in the hands of its collectors perfect assessments upon all of its real estate. Certainly, a sound public policy will not allow a collector to proceed so far as to gather all the taxes which may be obtained readily and easily, and receive his commission upon them, and refuse to collect the rest of the taxes legally assessed.
We cannot see that the present case is a stronger one for the defendants, because "the great bulk of the real estate in town,” was defectively described in the assessment. Logically, the rule would be the same, whether the number of parcels be few or many. The argument for the defendants proceeds upon the .ground that the contract between the town and its collector is an •entirety, the implication being that the collector is to have a ^percentage upon all the taxes to be assessed, and that the town *247breaks its side of the contract by furnishing imperfect assessments. If this be so, we cannot perceive why the contract is not broken by the town, if the assessment by mistake includes a poll tax upon a deceased person, or upon a person removed from town, or if the assessors abate a portion of the taxes assessed. Who could say, in such case, where the stopping point shall be, beyond which the tax gatherer may not retreat in order to shelter himself from liability? The term, "great bulk,” does not describe a measure definite enough to go by. The rule would not be precise or practical. Parties would have nothing but uncertainty to depend upon.
The position of the defense as to the nature of the contract between the parties cannot be sustained. The real relation is that of principal and agent. The agent need not enter upon the work assigned to him, if there be any reasonable objection to it. But entering upon the execution of his duties, he has no right to leave those duties half performed. The collector in the present case could have seen the difficulties in his way, just as well in the beginning as in the end. He is excusable for non-collection, only so far as the town failed to furnish him full and sufficient means with which to enforce collection. That failure here applies not. to the whole list of uncollected assessments, but only to a distinct and separable part of them. The burden complained of by the collector is pretended rather than real.
The collector cannot dictate as to what persons or what property shall be assessed. He takes his chances as to that. His compensation is regulated accordingly. If property is omitted from assessment, it is no concern of his. And, surely, if real estate is defectively assessed, it can make no stronger case for him than if not taxed at all. Property illegally taxed may well be regarded as in the condition of property omitted from taxation. So, assessors may make new assessments sometimes: may abate assessments under some circumstances; may correct errors in both warrants and assessments in some cases; and none of these steps taken by the assessors will exonerate a collector from the performance of the duties undertaken by him.
*248The town is certainly in a dilemma, if this collector can throw up his commission. If he is not under a legal obligation to collect the taxes that are legally and well assessed, then no other collector can be placed under such obligation. Nor do we see that the town officers could • commit these bills of assessment, in the present condition of things, to a new collector. There is no cause for declaring the office vacant. There is no vacancy to fill. K,. S., c. 6, § 121.
The defendants rely upon several cases as approving the doctrine which they contend for. We think the cases fail to support such doctrine. In Orneville v. Pearson, 61 Maine, 552, it was held that a collector was not obliged to complete the service required under a defective and illegal warrant. The presumption is that the warrant was not sufficient for the enforcement of any of the taxes in that case remaining* unpaid. In Harpswell v. Orr, 69 Maine, 333, a collector was exonerated from completing his services under a valid warrant, where there was no description, in the valuation and assessment, of the real estate taxed. " The omission,” it is there said, " deprived the collector of one mode of collecting the tax.” It does not appear in that case that any of the unpaid taxes were legally assessed. The doctrine established by those cases is, that a town cannot hold a collector responsible for failing to do what it has neglected to> give him the power to do. Nothing more or different from this was in the mind of the court in rendering those decisions. They should be regarded as authorities for nothing beyond it. A collector cannot be obliged to act under an illegal warrant, nor has he all the means furnished by law to collect a tax upon real estate when such estate is not properly and sufficiently described. But so far as taxes are concerned which he has full and legal power to collect, if he enters upon a discharge of his official duties, he should complete those duties at least to the extént of the power conferred.
Exceptions sustained. •
AppletoN, C. J., ViRGiN, Libbey and Symonds, JJ.,. concurred.