| Me. | Feb 28, 1887
The defendant, having a taxable residence in Bath, and being assessed there for a supposed ownership in several vessels, the taxes upon which he refused to pay, is sued for the taxes by the collector, in the name of the city, by virtue of authority given in the R. S., c. 6, § 175.
■ The branch of defense most strongly urged against the suit is, that the defendant was only a mortgagee of the vessels and not assessable therefor. If he had not been at.the time of the assessment an inhabitant of Bath, and thereby not subject to the jurisdiction of its assessors, the defense would be open to him. Ware v. Percival, 61 Maine, 391; McCrillis v. Mansfield, 64 Maine, 198. As it is, he cannot urge such defense to the suit. If vessels which he did not own were taxed to him, it was merely an over-valuation of his property, a hardship which could be avoided in only one way, and that would be by petition to the assessors for an abatement, and, if unsuccessful before them, by an appeal to the county commissioners. An over-valuation may consist in assessing to a person property which he does not own, as well as in estimating too highly that which he does own. In neither class of over-valuation is an excess of jurisdiction assumed by the assessors, and in each case the remedy can be only by appeal from the assessors to the commissioners. Stickney v. Bangor, 30 Maine, 404; Hemingway v. Machias, 33 Maine, 445; Gilpatrick v. Saco, 57 Maine, 277; Waite v. Princeton, 66 Maine, 225.
We do not mean to say that assessors have an unlimited discretion in assessing taxes. Fraudulent action on their part may be corrected in equity; and there may possibly be other remedy for fraudulent valuation. Cool. Taxation, (2d ed.) 784, 792.
Stress is placed on the language of the statute that the remedy by an action is allowed for the collection of taxes " legally assessed.” But this requirement applies just as much in the remedy by arrest or by seizure as in a remedy by suit. In either case, there must be a legal assessment. The answer is, so far as the point of over-valuation affects the question, that the assessment is presumed to be legal, and that the defendant is not permitted to deny its legality, except in the way pointed out by statute for that purpose. It would seem to be unreasonable and inconsistent to allow the defendant greater opportunities to . escape taxation when sued than when arrested by the collector. It has been held, in cases above cited, that an overrated taxpayer cannot pay the tax under protest and afterwards recover it of the town or its collector. The principle must be the same whether he be plaintiff or defendant in the litigation. In Camden v. Village Corporation, 77 Maine, 530, and Bucksport v. Woodman, 68 Maine, 33, cases relied on by the defendant, the point now made did not appear. Those were cases of facts agreed to by the parties for the purpose of presenting certain questions of law to the court.
It does not strike us, as contended by counsel, that there would be any dilemma in the possible chance, if this doctrine be established, that a collector might be prosecuting a suit and the defendant be, at the same time, prosecuting a petition, the one to collect, and the other to abate the same tax. It would be like any suit on a judgment, where there can be no defense
Other points of alleged illegality in the proceedings are relied upon by the defense, where the principle of estoppel cannot apply, and the most important one is that the recorded list of assessments is not signed by the assessors. How much force the objection would possess if it were sought to produce the forfeiture of an entire estate for the non-payment of an ordinary tax upon it, would be another question. As was said in Cressey v. Parks, 76 Maine, 534, where a marked distinction is made between collecting taxes by suit and proceedings to create a forfeiture: " To prevent forfeitures strict constructions are not unreasonable. But, where forfeitures are not involved, proceedings for the collection of taxes should be construed practically and liberally.”
The papers 'committed to the collector are complete in themselves, and are original papers. The law requires the assessors to make a record of their assessment more for the general convenience than for the establishment of any individual right. It is for the perpetuation of proof more than all else. From these recorded proofs the assessors can furnish a new commitment to the collector, if his be lost or destroyed. § 124, c. 6, R. S. The records are useful as a test in case the collector’s list need be confirmed in any way, and are necessary to make settlements by with the collector. The absence of a perfected record cannot excuse the defendant’s resistance against paying his taxes which are clearly and regularly inscribed upon official papers possessed by the collector. The necessary proof, if not upon record, is in the hands of the collector. Norridgewock v. Walker, 71 Maine, 181.
The defense, however, goes to the extent of assailing the regularity of the warrant in the collector’s hands, because it contains a demand to collect interest on the assessments after a prescribed date. There has been no attempt to enforce this admittedly unauthorized mandate in the warrant, and it is independent of and separable from all other parts of the instrument which contains it. Not fusing with the other requirements of
It is a general rule that an illegal provision in a warrant, separable from its other provisions, will not vitiate the instrument, nor become material, unless the direction is acted upon. No objection can be raised thereto by the person against whom there is no attempt to enforce it. Barnard v. Graves, 13 Met. 85; Walker v. Miner, 32 Vt. 769" court="Vt." date_filed="1860-02-15" href="https://app.midpage.ai/document/walker-v-miner-6576898?utm_source=webapp" opinion_id="6576898">32 Vt. 769; see, also, numerous cases cited in Cooley’s Taxation, 426, in support of the principle approved by the author in his text.
Fin allit is submitted in behalf of the defense, that the case omits to show that the assessors made the certificate of the assessment of the state tax as required by R. S., c 6, § 122. This is a mere irregularity, if it be as much as that, which very little concerns the individual tax-payer, a neglect to obey for the time being a directory order of the law. This the law easily overlooks. The omission may be supplied by an amendment. The certificate may be added. Black. Tax. Tit. 397; Cool. Tax. 314, et seq. and cases.
Exceptions overruled.