90 Me. 71 | Me. | 1897
This is an action of debt by the City of Auburn and city treasurer to recover a tax assessed, in 1894, duly authorized by the mayor. The whole evidence is reported, and it therein appears, from the assessment lists and commitment thereof by warrant to the collector, that the tax sued for was due. No question is made as to the regularity and sufficiency of these documents. They, therefore, make a prima facie case, sufficient to sustain the action. Norridgewock v. Walker, 71 Maine, 181; Howe v. Moulton, 87 Maine, 120; Bath v. Whitmore, 79 Maine, 182. To overcome the apparent validity of these documents, it is necessary to show the illegality of the tax. The plaintiff introduced in evidence, — that might well have been omitted, — a copy of the records of the meeting of the city council and adjournment thereof, at which the taxes were levied. This record runs, “ The City Council met pursuant to call of the Mayor,” and then
I. Exception is taken to the refusal of the presiding justice to rule that the meeting was not legally called, and that therefore the tax was levied without authority of law. This was not error, for it appears prima facie that the charter requirements as to the calling of the meeting had been complied with. The record states: “ Met pursuant to call of the Mayor.” The charter empowered the mayor to call the meeting by causing a “notification to be given in hand, or loft at the usual dwelling-place of each member.” It does not provide who shall do it; nor that any return of the fact shall be written, made or preserved anywhere. Neither did the act relating to town meetings prior to R. S., 1841, c. 5, § G, mention the mode of service of a town meeting warrant, and up to that time our statute was the same as the Massachusetts statute of 1787.
In Massachusetts : “ That he had warned all the inhabitants of the district as the law directs ” was held sufficient prima facie. Saxton v. Nimms, 14 Mass. 320. “That he had warned the inhabitants by posting up copies ” was held good. Thayer v. Stearns, 1 Pick. 109. “Pursuant to the warrant I have notified,” “Agreeable to the within warrant,” &e., “That he had notified as the law directs,” were held sufficient. Briggs v. Murdock, 13 Pick. 305. “ That he had warned the inhabitants,” was held sufficient in a suit for taxes. Houghton v. Davenport, 23 Pick. 235; Commonwealth v. Shaw, 7 Met. 52; Rand v. Wilder, 11 Cush. 294; Commonwealth v. Brown, 147 Mass. 592. The doctrine of these cases seems to be that the notice is presumed to comply with the requirements of law from the general language of the return saying: That the officer had warned the inhabitants agreeable to the warrant; Pursuant to the warrant; As the law directs, etc. In Gilmore v. Holt, 4 Pick. 257, it was held that the notice of an annual town meeting was presumed to have been legal until the contrary be shown. So in Ford v. Clough, 8 Greenl. 343, where the statute required such notice “ as the town shall agree upon,” it was presumed to have been such as the town agreed to.
In State v. Williams, 25 Maine, 561, considered after the act of 1841 requiring town meetings to be warned in a particular way and a return showing how the same had been done, the court held a strict compliance with the statute necessary, and that the return of the officer was the only competent evidence upon the question; and so have all the later cases. Christ's Church v. Woodward, 26 Maine, 172; Fossett v. Bearce, 29 Maine, 523 ; Allen v. Archer, 49 Maine, 346; Brown v. Witham, 51 Maine, 29 ; Clark v. Wardwell, 55 Maine, 66; Hamilton v. Phipsburg, 55 Maine, 193.
It should be noticed that the Massachusetts cases, and the Maine cases, prior to the act of 1841, recognize a presumption in favor of regularity to arise from the most general language contained in the return of the officer who served the warrant, although that seems to have been the only proper evidence to be considered on the question. .
In this case the charter empowers the mayor to call special meetings by causing notifications to be given in hand, or left at the usual dwelling-place of each member. No length of notice is required. No particular person or officer is named who shall leave the notices. The mayor is to cause the notices to be given. Most likely a city clerk would be charged with the duty. He would probably make and sign the notices and either deliver them himself or see that some person, perhaps the city messenger, did so. It is his duty to keep a true record of meetings of the council. His record recites in this case, “Met pursuant to call of the Mayor.” That recital may as well be held to raise a presumption of legal notice as the general language of the officers’ returns in the cases above noticed, and we think it does. If he performed the service as city clerk, by direction of the mayor, it may be said that
II. Exception is taken to the refusal of the presiding justice to rule that one of the assessors and the collector had not been legally elected. The evidence of their election is the city record, “ The following officers, there being but one candidate, were each elected by the city clerk casting the vote of the convention, and each was declared elected.” This is an irregular method of electing officers required by statute to be elected by ballot, and whether valid or not it is unnecessary to now decide, inasmuch as the assessor thereby assumed to have been elected, and if not so, held over from a regular election of the previous year. Bath v. Reed, 78 Maine, 276. Whether the collector was legally elected is immaterial here.
III. Exception is taken to the refusal of the presiding justice to rule that the action was not maintainable upon the evidence submitted, thereby showing that all the evidence reported was intended to be made a part of the exceptions. The ruling excepted to was equivalent to denying a nonsuit, to which no exception can
Exceptions overruled.
Damages to be assessed below.
