Hartshorn v. Assessors of Ellsworth

| Me. | Jul 1, 1872

Appleton, C. J.

The general rule of taxation is, that the personal property of an individual should be assessed to him in the town where he is an inhabitant on the first day of April, in each year.

The first exception is found in R. S., c. 6, § 14, and is as follows : All goods, wares, and merchandise, all logs, lumber, boards, and other lumber, and all stock in trade, including stock employed in the business of any of the mechanic arts, in any town within this State other than where the owners reside, shall be taxed in such town, if the owners, their tenants, or any person contracting under them for the building of any house, shop, store, or vessel, occupy any house, shop, mill, wharf, landing, or ship-yard therein, for the purposes of such tenancy or contract.’

The object of this provision is, that taxes on the capital named shall be assessed, where the investment is made, the business done’ and the profits gained. This would seem to be in accordance with the principles of equity.

The rule for the assessment of money raised or borrowed by school districts, as established by R. S., 1857, c. 11, § 39, was as follows: ‘ When a district votes to raise money for any legal purposes its clerk shall, forthwith, or within the time prescribed by the district, certify the amount thereof to the assessors of the town; and within thirty days after receiving such certificate they shall assess it, as they do town taxes, on the polls and estates of the inhabitants of the district, whether wholly in their town or not, and on the non-resident real estate within, but not on any real estate without, the district.’

In 1869, this section was amended by c. 42, § 12; and the amendment was adopted in the revision of 1871, c. 11, § 44, and is in these words: ‘ When any district votes to raise money for any legal purpose, its clerk shall, forthwith, or within the time pre-i scribed by the district, certify the amount thereof to the assessors of the town, and the time when raised; and within thirty days after receiving such 'certificate they shall assess it, as they do town taxes, on the polls and estates of the residents and owners in the district at the time of raising said money, whether wholly in their town or not, and on the non-resident real estate in the district.’

The existing statute was thus altered in two respects.

1. The clerk was required to certify ‘ the time when raised,’ so that the tax should be imposed only on the ‘ polls and estates of the residents and owners in the district at the time of raising said money.’

2. The assessors, when thus notified, were to assess the amount raised on the polls and estates ‘ of the residents and owners in the district ’ ‘ as they do town taxes,’ and not on ‘ the inhabitants of the district ’ as heretofore. Previously, the inhabitants alone were liable to assessment. By the change, they, or their equivalent, residents in the district, are to be assessed as formerly, and in addition thereto a new class is made liable to assessment, that is, owners in the district. Owners of what? Personal estate. Owners where ? In the district. How to be assessed ? As the assessors do town taxes. The word owners was unnecessary, if only resident owners were to be assessed.

We think the manifest intention of the legislature was to adopt the equitable rule established by c. 6, § 14, for the assessment in towns, and apply it to the analogous case of school districts. If not so, the alteration was immaterial. The certifying ‘ the time when raised ’ is of little importance, and if that was all the change intended, there would be no occasion to substitute ‘ residents and owners ’. instead of ‘ inhabitants,’ as in the section before its amendment.

But though the assessors may have erred in making their assessment, it does not follow that the writ of mandamus should issue as" prayed for.

The prayer of the petitioner is, ‘ that a rule be issued to said assessors, to wit, Erastus Rodman, Charles Joy, and Josiah Higgins, to appear, etc., to show cause, if any they have, why a writ of mandamus should not be issued by this court, commanding them to assess said school tax, according to law, to wit, on the per sonal estate within the district of non-residents of the district.’

The greatest care is to be bestowed upon the proper framing of the mandatory clause, the rule being, that the writ must be enforced in the terms in -which it is issued or not at all. Rex v. St. Pancras, 3 A. & E., 542. It should expressly state the duty required of the defendant. When a mandamus is awarded for purposes partly legal or partly not, the court will not enforce it by a peremptory writ limiting its effect, but will quash it; for though the court will, for the purpose of justice, mold the rule for the writ, jet it cannot mold-the writ itself. The defendant is not required to look dehors the writ to ascertain his duty, but the requirement to assess ‘ according to law ’ is a requirement to look beyond the mandate of the writ, and therefore is erroneous. The defendant looks only to the mandatory clause, to ascertain what is required of him, and not elsewhere. Topping on Mandamus, 324 et seq.

By the exceptions, ‘ if the petitioners are entitled to have a writ issued as prayed for, such writ is to issue, otherwise the petitioner is to be dismissed with costs for respondents.’

The mandate of the court, if issued according to the prayer of the petitioners, would be that the defendants should ‘ assess said school tax ... on the personal estate within the district of nonresidents of the district; ’ but this they could not properly do, unless such non-resident owners should occupy a ‘store, shop, mill, wharf, landing, or ship-yard therein,’ as provided in c. 6, § 14. A mandate, therefore, cannot legally issue as prayed for.

There are other objections raised against the maintenance of this process, but it is not necessary to consider them, as we are satisfied that no such mandate as prayed for can legally issue.

Petition dismissed with costs for defendants.

Cutting, Kent, Walton, Barrows, and Daneorth, JJ., concurred.