Mason v. Belfast Hotel Co. , 89 Me. 384 ( 1896 )

Emery, J.

Prior to the statute of 1893, c. 314, authorizing the collector of taxes to enforce by judicial process the tax lien upon the real estate assessed, he assumed the existence of the lien and enforced it summarily and directly by a sale of the real estate, giving the owner no opportunity to question the lien. In such proceedings he was held to great strictness since he was enforcing a forfeiture. Under this statute, however, the collector may proceed less summarily, and give the land owner an opportunity to show cause against the proceedings. This course has been taken in this case and we are to determine before any sale, whether the alleged tax lien really exists.

It is true, as a general proposition, that to establish a statute lien upon property without the consent of the owner, all the provisions of the statute must be fully complied with. But the owner of land under civil government can hardly be considered as refusing his consent to the assessment of any tax upon his land. In becoming the owner he may be considered as consenting to its being lawfully taxed, and made subject to its fair share of the public burdens. lie can properly object only to its being overtaxed, or taxed for an unlawful purpose, or by an illegal assessment, or else to some irregularity in the procedure which may do him an injustice. The court will not assume that the land owner desires to avoid all taxation of his land.

In this case the land owner makes the following objections to a tax lien judgment:

I. A witness testified that he was deputy city clerk of Belfast and, as such, then had the custody of the city records. He produced certain books of record which he testified to be the regular records of the city as made up and kept by the city clerk. By these same records the witness appeared to have been appointed and sworn as deputy clerk by the city clerk. The defendant now objects to the records being received as evidence, on the ground that the oath to the deputy could not be administered by the city clerk. This is immaterial. The witness was acting as deputy clerk and as such had and produced the city records. These records were not invalidated by any irregularity in the official oath of their custodian.

II. The qualification of one assessor was not questioned. The record of the oaths of the other two assessors for 1894 was as follows: “Personally appeared on the day set against their names, the following persons who have been elected to the offices set against their names, (and took their oath of office.)

Charles Baker. Assessor. March 20th.

Simon A. Payson. do. March 24th.”

The defendant insists that this record is fatally incomplete as to Payson and cites Bowen v. Brown, 84 Maine, 376. That was a case of forfeiture and there was in the record a hiatus which made it uncertain to what the “ do ” referred. Here there is no hiatus and the “do” unmistakably stands for “Assessor.” Opinion of Justice, 70 Maine, 567.

III. The preliminary notice was served upon one Calvin Hervey as treasurer of the defendant company. It is contended that there is no evidence that Hervey was then the treasurer of the company. There is evidence, however, that Hervey was made treasurer of the company at its organization, and has acted as such treasurer up to the date of the writ. In the absence of any evidence to the contrary, it may be assumed that his official relation continued.

IY. The collector’s warrant and lists did not contain a description of the real estate, and the collector in making up the notice to the defendant copied into it the description on the assessors’ book. We find in the statute nothing limiting the collector to his warrant as a source of information. To what better source could he resort than the records of the assessment itself ?

Y. The declaration included the defendant’s “proportion of the city tax, and the due proportion of the state and county taxes allotted to said city.” The statute provides that, when the action is brought to collect a county tax, it shall be brought in the county adjoining that in which the land lies. This provision is evidently intended to apply a county tax assessed directly upon the land by some state or county tribunal, as in the case of lands in plantations or unincorporated places. In such case the county has a direct, special interest in subjecting the land to the tax lien, as otherwise it might entirely lose the tax. But where, as in this case, the county has merely allotted a certain proportion of the county tax to an incorporated town, it has laid no tax on any particular land in that town, and is not concerned in its assessment or collection. This tax was assessed on this land by the assessors of Belfast, and is to be enforced by Belfast or its collector. The county has no voice nor interest in the assessment or collection of this defendant’s share of any of the taxes assessed by the city assessors. Hence the collector of Belfast is not required to bring the action out of the county.

Judgment for the plaintiff., against the defendant and against the land described in the writ.