Elwell v. Shaw

| Me. | Oct 15, 1821

The cause being continued nisi for advisement, the opinion of the Court was delivered at the succeeding term in Cumberland, to the following effect, by

Weston J.

As to the first question made in this action, it having been agitated before the Supreme Judicial Court of Massachusetts, and by them solemnly decided upon mature consideration, we do not feel ourselves at liberty to re-examine the grounds of that decision, and to sustain the objections which have been urged against it. Our predecessors felt strongly the equity of the case made by the tenant, and manifested a disposition to have supported his title, had not the pressure of legal authorities constrained them to a different course. If the principle, stare decisis, properly actuated them, we certainly have additional motives, arising from their decision, for yielding to its authority.

But the tenant now relies upon another title, arising from a collector’s sale. This was made for the non-payment of five distinct taxes, committed to him for collection. The only objection urged at the trial against this title was, that in one of the taxes, namely, the school tax, the overlayings exceeded, by the sum of ten dollars and thirteen cents, the amount of five per cent, authorized by law. This objection was deemed, by the Judge who presided at the trial, fatal to the tenant’s title ; and ■whether it was so or not, is the question now presented.

The counsel for the tenant relies principally upon the authority of the case of Colman v. Anderson, 10 Mass. 115. but the assessment there objected to was made prior to the statute limiting the overlayings to five per cent. Anterior to this statute a practice had arisen, which had been universally acquiesced in, to exceed in the aggregate of the assessments, the entire amount authorized ; partly to obviate the perplexity to which assessors were subjected in consequence of the fractions arising in the assessment of taxes upon the polls and estates of the inhabitants of the respective towns, and partly to meet abatements or mistakes, and to insure the collection of the whole sum ordered to be assessed. With a view to sanction, and to limit this discretion, the legislature at length interposed ; and gave to as-, scssors a latitude fully adequate to enable them to discharge with ease the duties imposed upon them. To suffer them to exceed this limit, would be to subject the citizens to the payment of taxes, to the imposition of which they had never assented, and to create uncertainty in their amount, in violation of the manifest provisions of the statute. And it has been expressly decided that “ the assessing more than five per cent, above the sums voted by the town to be raised, makes the assessment illegal and void.” Libby v. Burnham et als. 15 Mass. 144.

Upon the authority of this case also, the proceeding to make sale of the land in question, for the non-payment of all the taxes, renders the sale void, notwithstanding the assessment of a part of them is not liable to objection.

We are therefore of opinion that the jury were properly directed at the trial; and that there must be

Judgment upon the verdict.

JVote. The Chief Justice, having formerly been of counsel with the defendant, did not sit in this cause.