City of Auburn v. Mandarelli

• Decision Date: 15 May 1974
• Citation: 320 A.2d 22
• Parties: CITY OF AUBURN v. Samuel MANDARELLI.
• Court: Maine Supreme Court

Page 22

320 A.2d 22

CITY OF AUBURN v. Samuel MANDARELLI.

Supreme Judicial Court of Maine.

May 15, 1974.

Linnell, Choate & Webber by G. Curtis Webber, Jon S. Oxman, Auburn, for plaintiff.

Wilson, Steinfeld, Murrell & Lane by Henry Steinfeld, Thomas P. Wilson, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, WERNICK, and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

Having ostensibly acquired title to a certain parcel of real estate on December 23, 1970 by virtue of 36 M.R.S.A., §§ 942 and 943 which, in pertinent part, state that

'(i)f the tax lien mortgage, together with interest and costs, shall not be paid within 18 months after the date of the filing of the tax lien certificate in the registry of deeds, the said tax lien mortgage shall be deemed to have been foreclosed and the right of redemption to have expired,'

The City of Auburn, the plaintiff taxing municipality, on August 26, 1971 brought action against the defendant, pursuant to 36 M.R.S.A. § 946, ¹ to establish and confirm its title to the premises. The Superior Court entered judgment for the plaintiff from which the defendant appeals. We deny the appeal.

The case was submitted to the Court below on a stipulation that the stated evidentiary matter 'shall be considered as all of the evidence in the case for the purpose of adjudication of the issues by the court as fully as if introduced through testimony and documentation.' (Emphasis supplied.) Summarizing the parties' agreement, we are concerned with the assessment of a 1968 municipal tax in the amount of $399.00 against the land the buildings of one Katherine Mandarelli situated in the City of Auburn. The tax was committed for collection on August 1, 1968. Its non-payment caused a delinquent letter to be sent to the taxpayer on January 2, 1969. The statutory 'ten-days notice' under 36 M.R.S.A., § 942 was sent to the taxpayer and The defendant acknowledges full compliance with the requirements of 36 M.R.S.A., § 942. ² He contends, however, that forfeiture of the property pursuant to the statute drprives him of procedural and substantive due process of law, and, where the value of the property, as in the instant case, far exceeds the amount of the tax due, if constitutes a taking without just compensation in violation of the Fifth, Fourteenth Amendments to the Constitution of the United States.

owner of record, Katherine Mandarelli, on June 6, 1969 and was received by her the next day, as evidenced by her signed receipt thereof. On June 23, 1969, a tax lien certificate was recorded in the Androscoggin County Registry of Deeds in compliance with 36 M.R.S.A., § 942. The defendant concedes that the 1968 tax assessed against the Mandarelli property remained unpaid on December 23, 1970 when the eighteen-months statutory period of redemption expired. The stipulation of facts carried the further information that Katherine Mandarelli conveyed her interest in the property to the defendant by deed dated August 18, 1970 and recorded in the Androscoggin Registry of Deeds on February 18, 1971. Additionally, the parties agreed the assessed value of said real estate was $13,300.00 in 1968 and $13,520.00 in 1970, but, for purposes of sale from Katherine Mandarelli to Samuel Mandarelli, the property was valued at $27,000.00.

I PROCEDURAL DUE PROCESS

The defendant seems to base his due process argument on the premise that the only notice which will satisfy the requirements of due process of law within the Fourteenth Amendment to the Constitution of the United States is notice obtained by personal service and that no other form of substituted service such as leaving the notice at the last known place of abode or by certified mail will qualify, except where it is shown that personal service cannot be made of necessity or for other good reason. In this, he is mistaken.

Initially, we recognize the tenuous position of the defendant in point of standing to question the constitutional deficiency of the statutory ten-days notice which under the statute the tax collector 'may * * * give to the person against whom said tax is assessed, or leave at his last and usual place of abode, or send by registered mail to his last known address.' Indeed, at the time notice was given to Katherine Mandarelli, the record owner, the defendant was a complete stranger to, and had no interest in, the property. His rights in the premises originated after the recording of the tax lien certificate in the registry of deeds, a fact which a title search before purchase would have readily disclosed.

Furthermore, from the agreed statement of facts, it is unclear whether the defendant acquired his alleged title to the property prior to the expiration of the period of redemption, i. e. on August 18, 1970 the date upon which the Mandarelli deed purported to have been executed, or subsequently thereto, i. e. on February 18, 1971 the date when the deed was recorded in the registry of deeds. The stipulation is silent respecting delivery of the deed.

A deed's appearance upon the record does not per se operate as a delivery nor supersede the necessity of proof of delivery. Patterson v. Snell, 1877, 67 Me. 559; Jones v. Roberts, 1876, 65 Me. 273. A deed takes effect from and by delivery, and not from its date. Egery v. Woodard, 1868, 56 Me. 45.

Notwithstanding the absence of an affirmative statement concerning the exact time of delivery of the deed in the agreement of the parties, however, the Court takes notice of the pleadings which positively settle the issue to the effect that delivery was on August 18, 1970 prior to the expiration of the period of redemption. The complaint so alleged and the answer admitted it.

Nevertheless, we have in mind that, in relation to the enforcement procedures provided by the tax lien law respecting real estate, this Court has applied the principle that there must be strict compliance with statutory requirements to divest property owners of their titles for non-payment of taxes, and failure strictly to follow the statutory delineated ritual will destroy the validity of the tax lien certificate. Roberts v. Moulton, 1909, 106 Me. 174, 76 A. 283; Inhabitants of the Town of Warren v. Norwood, 1941, 138 Me. 180, 24 A.2d 229; Scavone v. Davis, 1946, 142 Me. 45, 45 A.2d 787; Arsenault v. Inhabitants of Town of Roxbury, 1971, Me., 275 A.2d 598. Since the plaintiff's ostensible title would be a nullity, if, as contended by the defendant, the notice requirements of the statute were constitutionally insufficient to satisfy the due-process-of-law strictures, the defendant has standing to question the same in these proceedings.

It is a well established general principle of law that the constitutionality of legislative action can be attacked by persons whose rights are injuriously affected by the operation of the legislation. Look v. State, Me., 1970, 267 A.2d 907; Inhabitants of Canton v. Livermore Falls Trust Company, 1939, 136 Me. 103, 3 A.2d 429.

The defendant's present arguments were considered and rejected by this Court in the case of Inhabitants of Town of Warren v. Norwood, supra. There, the statutory notice was left at the home of the taxpayer-owner, while in the instant case the notice was given to, and received by, Mrs. Mandarelli as her signature attested to such facts.

In Town of Warren, this Court, in considering the constitutionality of the same tax lien law involved in the present case, recognized that the legislative branch of government under our tripartite system, even in the field to tax assessment and collection, is subject to the restrictions placed upon its powers and authority by the Constitution of this State and, further, that any state legislative enactment to be valid must, in the first place, conform to the Constitution of the United States.

In Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, the United States Supreme Court said:

'The Constitution of course obliges this Court to give full recognition to the taxing powers and to measures reasonably incidental to their exercise. But we are equally obliged to give full effect to the constitutional restrictions which attend the exercise of those powers.'

Our Court in Town of Warren further pointed out that he who questions the validity of administrative acts on constitutional grounds has the burden of showing that the particular enactment exceeds legislative power and that he is actually deprived of a constitutional right by the act of which he complains.

Also, this Court there said that the notice required by the tax lien law was more than sufficient to meet the requirements of dur process in the field of taxation to which the legislation related and that the This Court further concluded:

statutory remedies which allowed the taxpayer judicial review of the valuation placed upon his property and permitted an action for the recovery of money paid on any tax assessed against his property for an improper purpose with twenty-five per cent interest and costs, plus damages sustained by reason thereof, would seem to represent full assurance that the machinery for the enforcement of tax liens would be operated within constitutional bounds and, to that extent, served to meet fully the requirements of due process.

'The tax title derived by compliance with its (the) requirements (of the statute) can be no better than the tax assessment on which it is based; and if that assessment is defective, no title can accrue by going through the formality of recording a tax lien certificate. The process is available only as to property properly described and necessarily only if a lien has attached by proper assessment. Notice to the taxpayer is required both by delivery in hand, or at his last and usual place of abode, or by registered mail, and by record in the title registry office, and payment of the tax, with interest and costs, at any time during an 18-month waiting period, after record, assures the discharge of the...