Cone v. Forest

• Decision Date: 03 January 1879
• Citation: 126 Mass. 97
• Parties: Henry D. Cone v. Sheldon E. Forest
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

126 Mass. 97

Henry D. Cone v. Sheldon E. Forest

Supreme Court of Massachusetts

January 3, 1879

Argued September 11, 1877

Berkshire.

Judgment rendered in favor of the plaintiff for the value of the two cows as found by the jury.

J Dewey, for the defendant.

M Wilcox & J. M. Barker, for the plaintiff.

Colt J. Endicott & Lord, JJ., absent.

OPINION

Colt, J.

This is an action of tort to recover the value of nine cows alleged to have been converted by the defendant to his own use. The defendant admits that he seized and sold the cows, and justifies his acts under a warrant issued to him, as collector of the town of Great Barrington, by the assessors of that town, directing him to collect a tax voted by one of the school districts of that town. At the trial it appeared by an inspection of the warrant, that to the amount voted by the district, namely $ 1800.11, was added the sum of $ 115.16 "for the overlaying on said tax." The plaintiff contended that, as the assessors added to the amount of the tax a sum exceeding five per cent thereof, the assessment was illegal, and the warrant furnished no justification to the defendant.

The statute provides that the assessors "may add to the amount of a tax to be assessed such sum, not exceeding five per cent thereof, as any fractional divisions of the amount may render convenient in the apportionment." Gen. Sts. c. 11, § 32. This provision, substantially, has been in force since the year 1785. Rev. Sts. c. 7, § 28. St. 1785, c. 50, § 11. Prior to that year it had been the common practice of assessors, either to suit their convenience in calculating the apportionment of the tax, or, with a view to meet abatements or defalcations and mistakes, to add to the amount of the tax voted a sum sufficient in their judgment to answer these purposes. Colman v. Anderson, 10 Mass. 105. But this was done without any statute authority; and in order to remove doubts as to the power of the assessors to do this, and, at the same time, to limit their discretion, the St. of 1785 was passed.

It is clear, that, under the law as it now exists, assessors have no right to add to the amount of the tax voted more than five per cent thereof, and that, if they do so, their assessment, for the amount of the excess, is illegal. It will not be necessary to consider whether this provision of the statute applies equally to school-district taxes; for we are of opinion, that the collector is protected by his warrant, notwithstanding the illegality of the assessment. He is entitled to the benefits which the law affords to ministerial officers in the service of process, issued by courts of competent jurisdiction, and is not bound to examine into the legality of previous proceedings. Hubbard v. Garfield, 102 Mass. 72. Underwood v. Robinson, 106 Mass. 296. Rawson v. Spencer, 113 Mass. 40.

Under the provisions of the Gen. Sts. c. 11, § 54, and c. 12, § 56, the illegality of this assessment, even if apparent on the face of the warrant, does not operate to defeat the defendant's justification. These provisions were first enacted in the St. of 1859, c. 118. That act was probably passed in consequence of the decision in Goodrich v. Lunenburg, 9 Gray 38, in which it was held that an error of the assessors, in not assessing one sixth of the state tax upon the polls, vitiated the assessment, and that the plaintiff could recover the whole tax in a suit against the town. Section 4 of the St. of 1859, c. 118, provides that "whenever, by any erroneous or illegal assessment or apportionment of taxation, any party is assessed more or less than his due and legal proportion, such tax and assessment shall be void only to the extent of the illegal excess of taxation, whenever such exists; and no party shall recover, in any suit or process based upon such error or illegality, greater damages than the amount of such excess." In the revision of the following year, these provisions were separated, and are found, with slight changes of phraseology, in cc. 11 and 12 of the Gen. Sts. cited above; but we see no reason to suppose that the Legislature intended any change of the law.

The defendant is entitled to the protection afforded by these provisions. The excess in the overlaying was, within the meaning of the statutes, an "erroneous or illegal assessment or apportionment," by which the plaintiff was assessed more than his due proportion. The assessors had jurisdiction of the subject-matter; they acted under the vote of a legally constituted school district; the plaintiff was liable to assessment upon his property for the amount voted; all the proceedings were regular, with the single exception named. The purpose of the St. of 1859 was to prevent the embarrassment and delay in the collection of taxes caused by errors of assessment or apportionment, where as in Goodrich v. Lunenburg, the extent of the error, and the amount of the illegal excess, could be ascertained. It is evident also, that, in order to give full force to its provisions, the collector must be protected in the collection of the whole tax assessed. The declaration of the statute, that no sale, contract or levy shall be avoided by reason of any such error or irregularity, implies this, and gives validity to the levy and sale. The collector is not required to correct errors of this description in the assessment. The sale cannot therefore be avoided, either in whole or in part. The plaintiff is left to his remedy against the school district for the illegal excess. The language admits of no other interpretation.

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