City of Rockland v. Rockland Water Co.

82 Me. 188 | Me. | 1889

Haskell, J.

Debt for a tax. The defendant was domiciled in plaintiff city and liable to taxation there. A tax was laid upon specific parcels of defendant’s real estate valued at $1,100, which it promptly paid, and upon “aqueducts, pipes, conduits, pumps and other personal property, including money on hand or at interest,” valued in gross at $30,000. To recover the tax assessed and laid upon the last item of valuation and interest thereon this suit was wrought.

I. This is not the case of a tax-payer not domiciled within the jurisdiction of the assessors who laid the tax, and not liable to be assessed for a personal tax at all, as in Briggs v. Lewiston, 29 Maine, 472; and Hathaway v. Addison, 48 Maine, 440, and Martin v. Portland, 81 Maine, 293, and Preston v. Boston, 12 Pick. 7, or, if within their jurisdiction not liable to taxation, as in Sumner v. First Parish in Dorchester, 4 Pick. 361, and Dunnell Mfg. Co. v. Pawtucket, 7 Gray, 277, and Massachusetts Genl. Hospital v. Somerville, 101 Mass. 319, or as in Torrey v. Millbury, 21 Pick. 64, where a part of the assessment was laid without authority of law and could be distinguished; but rather a case of over-valuation, as Stickney v. Bangor, 30 Maine, 404, and Hemingway v. Machias, 33 Maine, 445, and Gilpatrick v. Saco, 57 Maine, 277, and Waite v. Princeton, 66 Maine, 225, and Bath v. Whitmore, 79 Maine, 182, and Osborn v. Danvers, 6 Pick. 98, where a resident of Danvers sued to recover back a tax laid upon personal property invested in business in another state, and the court held that the action could not be maintained, because it was a case of over-valuation, and that the only remedy was under a statute similar to ours, providing a method to procure an abatement.

The law is clearly stated in Howe v. Boston, 7 Cush. pp. 273 and 275. The court says : “We consider the rule well settled in this commonwealth, that, where a party is rightfully taxed for any personal or any real estate, his remedy and his only remedy for an excess of taxation is by application for abatement. * * * But, on the other hand, if a person not legally liable to be taxed in a city or town is nevertheless assessed there, then the assessment is regarded as wholly void. * * * Personal estate follows tlie domicile and is to be assessed to the owner in the place of his residence. Real estate is assessed in the town or city in which it is situated, to non-residents as well as residents. Tbe former constitutes no lien on the property; the latter creates one on the premises assessed, for the amount assessed thereon. These differences in the mode of assessing and collecting taxes on personal and real property have caused each to be regarded, in law, as a separate and distinct class or subject of taxation in relation to which, the remedies of parties are entirely separate and distinct. But this distinction goes no farther than to allow the validity of an assessment on each class or subject of taxation to be determined by itself, irrespective of the other ; * * and in order to render the whole tax invalid on either kind of property, * * it must be made to appear that the party aggrieved was not liable to assessment for any part of that class or subject of taxation, of which he complains. It follows, therefore, that a party cannot be permitted to go behind the assessment, either on personal or real estate, and look into the details and particulars of which the entire valuation is made up, and. claim to recover back a portion of an entire assessment, on the ground that it included property of which he was not the owner, and for which he was not liable to assessment.” Lincoln v. Worcester, 8 Cush. 55; Bourne v. Boston, 2 Gray, 494; Salmond v. Hanover, 13 Allen, 119.

How do these doctrines affect the case at bar? Clearly the intention of the assessors was to lay the tax in question upon personal property only. They had already assessed defendant’s real estate separately. If the assessment were upon personal property alone, it would not be contended by defendant’s counsel that the assessment would be insufficient to support the plaintiff’s action. Tobey v. Wareham, 2 Allen, 594; Noyes v. Hale, 137 Mass. 266 ; Bemis v. Caldwell, 143 Mass. 299.

The assessment specifies, at least, some personal property liable to taxation; and was, therefore, legally laid, as a tax, upon that class of property. If the assessment was too large, for any reason, either from including property that the defendant did not own, or that was exempt from taxation, or that could not be lawfully taxed as personal property, it is clearly a case of over-valuation, that cannot be set up in defense of this action.

What matters it, whether “aqueducts, conduits, etc.,” are real estate under the doctrines of Hall v. Benton, 69 Maine, 346, and Kittery v. Portsmouth Bridge Co., 78 Maine, 93; or whether they are exempt from taxation under R. S., c. 6, § 6, Par. X, because used by the city for the extinguishment of fires without charge ? In either case, when classed with personal property subject to taxation, under a valuation in solido, the result must be an overvaluation, — a valuation larger than can be justly placed upon the property liable to taxation. In such case abatement proceedings alone can fairly apportion what tax shall be paid and what remitted. If the defense, in this case, should prevail, injustice would be the result; for the court cannot know what portion of the tax should be paid and what remitted.

Where forfeitures are claimed for the non-payment of taxes, the most exact compliance with the law must be observed; but when taxes are sued for and the defendant is only asked to share his just proportion of the public burdens, the most liberal construction and consideration should be given to procedure in the assessment of taxes. Cressey v. Parks, 76 Maine, 632, 634.

II. R. S., c. 6, § 120, provides: “Towns at their annual meetings may determine when the lists named in § 97 shall be committed, and when their taxes shall be payable, and that interest shall be collected thereafter.” Section 121 provides : “The rate of such interest, not exceeding one per cent a month, shall be specified in the vote, and shall be added to and become a part of the taxes.”

So far, the statute seems plain ; but, when applied to cities under authority of R. S., c. 1, § 6, that provides, in the construction of statutes, “the word town includes cities and plantations, unless otherwise expressed or implied,” the intent of the legislature is not plain, and the practical application of the statute becomes difficult. Towns may act under the statute, at their annual town meetings when town officers are chosen and sufficient money is raised by vote to meet the necessary expenditures for the ensuing municipal year, and all other prudential affairs of the town are usually considered. But cities have no annual meetings corresponding to those of towns. They have annual elections to choose the principal city officers ; and these officers organize and become a council, where all levies of taxes are voted, and other city business is transacted, as it may arise during the municipal year.

R. S., of 1871, c. 6, § 93, provided: “Towns, at their annual meetings, may determine when their taxes shall be payable, and that interest shall be collected after that time.” In 1876, this statute was made to include cities; chap. 92 provided: “Whenever a city or town has fixed a time within which taxes assessed therein shall be paid, such city, by its council, and such town at the meeting when money is appropriated or raised, may vote that on all taxes remaining unpaid after a certain time, interest shall be paid at a specified rate, not exceeding one per centum per month, and the interest accruing under such vote or votes shall be added to and be a part of such taxes.”

In 1880, the legislature, without referring to the act of 1876, amended § 93 of R. 3., of 1871, so that it should read as § 120 of R. 3., now roads. The commissioner in his revision added § 121 and indicated in the marginal note that it contained the enactment of 1876. Ilis revision went to the legislature, bearing the marginal note, and after being considered by a committee was finally enacted and the old statutes repealed. So it appears that no change in the law ivas intended, and, if sufficient; phraseology remains in the statute, by fair construction, to give it the force intended by the legislature, it should be done.

The statute authorizes towns, at their annual meetings when the necessary levies for taxes are voted, to determine when the taxes shall become payable, and what interest shall thereafter accrue. In applying this statute to cities, the expressed limitations in it should he imposed, so far as they can be. City councils, after obtaining the estimates of the necessary expenditures for the municipal year, vote to raise the money to be assessed precisely as towns do at their annual meetings; and the same reasons apply with equal force to both, requiring them to then determine, if at all, when the taxes shall become payable, and what rate of interest thereafter shall accrue. The subject matter is then vivid in the minds of those called to act upon it, and can never again so well receive intelligent consideration. Moreover, the tax payer then has ample notice of the time when his taxes will fall due, and he is given a fair opportunity to provide for them. It would be an unreasonable construction of the statute, that would give a city council power, at any time during the municipal year, even after the taxes have been assessed and committed for collection, to vote interest upon those that might be overdue and unpaid. That could never have been the intention of the legislature, as clearly appears from the act of 1876.

In the case at bar, the vote as to interest, touching the taxes in suit, in no respect complies with the requirements of the statute, and is therefore null.

Judgment for plaintiff for the tax only, $676.00, with interest from date of the writ.

Petebs, C. J., Walton, Vibgin, Emeby and Fosteb, JJ., concurred.