Emery v. Inhabitants of Sanford , 92 Me. 525 ( 1899 )

Whitehouse, J.

In this action the plaintiff, a taxpayer in the defendant town, seeks to recover damages alleged to have been sustained by him in consequence of the omission of the assessors to include in their assessment a large amount of property belonging to other persons which was legally liable to taxation in the defendant town. At the return term of the writ the defendants filed a general demurrer to the declaration, and the case comes to this court on exceptions to the ruling of the presiding judge, sustaining the demurrer.

The plaintiff contends that his action is maintainable under the provisions of section 142 of chap. 6, R. S., which are as follows: “If money not raised for a legal object, is assessed with other moneys legally raised, the assessment is not void; nor shall any error, mistake or omission by tbe assessors, collector or treasurer, render it void; but any person paying such tax, may bring his action against the town in «the supreme judicial court for the same county, and shall recover the sum not raised for a legal object, with twenty-five per cent interest and costs, and any damages which he has sustained by reason of the mistakes, errors or omissions of such officers.” ■

In view of the mischief obviously designed to be prevented and the object sought to be accomplished by this statute, it is the opinion of the court that it is not fairly susceptible of tbe interpretation contended for by the plaintiff; and that it could never have been intended to authorize an action for damages by every taxpayer in the town, for failure of the assessors to reach and include in their assessment all the taxable property in the town. It was evidently the primary purpose of this enactment to provide that assessments of taxes should not be vitiated by mere errors, mistakes and irregularities on the part of assessors in making their assessments and commitments. Prior to the enactment of this statute it had been held that the omission of the assessors, through error of judgment or mistake of law, to tax any particular individual who might be liable to taxation, did not render the whole tax illegal and void. Williams v. Sch. Dist., in Lunenburg, 21 Pick. p. 81; and it has repeatedly been so held since that time. Watson v. Princeton, 4 Met. 599; Lover v. Maine Water Co., 90 Maine, 180. Since the passage of the act in question (see R. S., 1841, ch. 14, § 88) it has been the avowed policy of the law to insure the collection of the tax and to place upon the taxpayer the burden of showing that he has actually suffered damage by reason of any failure of the assessors to observe the directions given as to the manner of the assessments. Boothbay v. Race, 68 Maine, 351. The word “ omission ” in this statute should be considered in connection with the words “error” and “mistake” which precede it, and be interpreted with reference to the rule of ejusdem generis. It was intended to signify an absence of the requisite formalities in assessments and commitments, and a failure to observe the regulations of the statute which were intended to promote method, system and uniformity in the mode of proceeding. It was clearly never in the contemplation of the legislature that it would be extended to apply to cases of omission to include in the assessment all the property which ought to be taxed. As observed by the court with reference to the analogous question in Dover v. Maine Water Co., 90 Maine, supra: “The consequences of such a doctrine are enough to condemn it.” There is scarcely an assessment in the state that would not be open to assault for some such omission of property, either accidental, or otherwise, and suits for damages in hehalf of dissatisfied taxpayers would multiply with vexatious rapidity. No authority cited by the plaintiff’s counsel supports such a doctrine. In every case cited by him in which reference is made to a right of action under this statute, the question turns upon an “ omission ” of the requisite formalities in the assessment or commitment of the taxes and in no instance upon an “omission” to tax all the property which ought to be taxed.

Among the adequate remedies, however, which are available to property-owners and taxpayers to secure equal and legal taxation, is that prescribed in paragraph 9 of Sec. 6, Ch. 77, R. S., in which, on application of not less than ten taxable inhabitants of a town, full equity jurisdiction is conferred upon this court to hear and determine all complaints relating to any unauthorized votes of such town to raise money by taxation or to exempt property therefrom. But upon the facts stated in the present declaration, this action is not maintainable and the demurrer was properly sustained.

Exceptions overruled.