City of Bath v. Reed

• Decision Date: 11 June 1886
• Citation: 4 A. 688,78 Me. 276
• Parties: CITY OF BATH v. REED and others, Ex'rs.
• Court: Maine Supreme Court

4 A. 688

78 Me. 276

CITY OF BATH

v. REED and others, Ex'rs.¹

Supreme Judicial Court of Maine.

June 11, 1886.

On exceptions by defendants.

Francis Adams and W. Gilbert, for plaintiff.

C. W Larrabee, for defendants.

FOSTER, J. The defendants are executors of the last will of Thomas M. Reed, late of Bath, deceased, and this action of debt is brought to recover of them taxes upon the personal property of the deceased for the years 1883 and 1884. Rev. St. c. 6, § 175. The jury returned a verdict for $6,760.90. The principal question raised by the defendants' exceptions relate to the legality of the board of assessors for the city of Bath in each of those years, and to the designation of the defendants in the lists of assessment.

By section 6 of the city charter, as amended by chapter 538 of the Special Laws of 1874, it is provided that there shall be a board of three assessors to be elected by the city council, one member of which board is to be elected annually, "and each assessor elected to fill the place of one whose term expires shall hold office for the term of three years." Together with other facts, about which there was no controversy at the trial, it appeared that John W. Ballou, at the annual meeting of the city council in 1880, was duly elected and qualified as one of the assessors of the city of Bath for three years. Concerning the election and qualification of the other assessors for that or subsequent years no question was raised. At the annual meeting of the city council in 1883, the said Ballou was re-elected, and continued to act as assessor with the other members of the board for that year; but whether he ever qualified under that election by having the oath of office administered to him was one of the strenuously contested questions of fact, and the jury, upon the special interrogatory propounded to them in relation thereto, were unable to find that the oath had been administered to him under the election of 1883.

1. The first instruction of the presiding justice to which exceptions are taken, relates to the board of assessors for 1883, and was to the effect that the assessor whose qualification was called in question, if duly elected and qualified in 1880, and if he failed to take the oath of office in 1883, was nevertheless a legal assessor in that year, as the term for which he was elected in 1880 would continue until some one was elected and qualified in his stead. Prior to the amendment of 1874 it was provided by section 6 of the city charter that the assessors were to be appointed annually. Although there was no express provision in that section for the continuance beyond the year, yet, there being no restrictive provision, the general statute applied. That statute reads thus:

"The assessors and subordinate officers of cities, when their charters do not otherwise provide, shall be chosen on the second Monday of March annually or as soon after as practicable, and hold their offices one year therefrom, and until others are chosen and qualified in their stead." Rev. St. c. 3, § 32.

Had there been no amendment changing the term from one year to three, there could be no doubt but that the officer elected for one year would hold over until the election and qualification of some one in his stead. Dow v. Bullock, 13 Gray, 138. In the case of Weir v. Bush, 4 Lift. (Ky.) 430, it was held that where, by statute, an officer holds for a given term, and until his successor is elected and qualified, he continues in office "until his successor is duly elected and qualified, though from failure to elect, or from other causes, it is after the expiration of the term.

Even in the absence of any charter or statute provision that the officer of a municipal corporation shall hold over until his successor is elected and qualified, the doctrine of the American courts has strongly inclined to guard against lapses, sometimes unavoidable, and to adopt the analogy of other corporate officers who hold over till their successors are elected, unless the legislative intent to the contrary is clearly manifested. 1 Dill. Mun. Corp. § 158; Chandler v. Bradish, 23 Vt. 416; Tuley v. State, 1 Ind. 502.

In the case last cited, which was an action upon an official bond against sureties, the court say:

"But where, by the constitution of the corporation, the officers are elected for a term, and until their successors are elected and qualified, or where they are elected for the year ensuing,' and the charter or organic law contains no restrictive clause, the officers may continue to hold and exercise their offices, after the expiration of the year, until they are superseded by the election of other persons in their places."

In Connecticut it was held by HOSMER, C. J., in McCall v. Byram Manuf'g Co., 6 Conn. 428, that an officer elected for "the year ensuing" is, in the absence of any other restrictive provision, entitled to hold beyond the year, and until he is superseded by the election of another person in his place. See Congregational Soc. v. Sperry, 10 Conn. 200; Kelsy v. Wright, 1 Root, 83; People v. Runkle, 9 Johns. 147; Trustees, etc., v. Hills, 6 Cow. 23; Currie v. Mutual Assur. Soc., 4 Hen. & M. 315.

The English courts early adopted a stricter rule in reference to the office of mayor, or other head officer of the old corporations in England; holding that the office was annual, and expired at the end of the year. But in the case of Foot v. Prowse, Str. 625, it was decided in the exchequer chamber, and afterwards affirmed in the house of lords, that, though aldermen of Truro were to be elected annually, those words were only directory, and the aldermen continued to be such after the year, and until others were elected. So in the case of Queen v. Corporation of Durham, 10 Mod. 146, the court of king's bench said that, though a town clerk was to be annually elected, he remains town clerk after the year, and until another is chosen; but, if it be that he was to be elected for one year only, his office would have expired at the end of the year.

We think a correct decision may he reached, however, in the case under consideration, when we compare the amendment with the original charter. The only change of any importance was in the number of years for which the assessors were to be elected. The term was changed from one year to three. Neither the original nor the amended charter expressly restricted the duration of the office to the exact time. It is evident, when we consider the object to be attained, as well as the language of the amendment, that all the change intended was the substitution of a triennial for an annual election. The statute provision to which we have referred, and which, certainly, prior to the amendment of the charter, was to be read along with it, infusing vigor and strength into its terms, clearly indicates and expresses the legislative intent to provide beyond a peradventure against any lapse of the office of assessors in cities by reason of a failure either in the election or qualification of those officers at the expiration of the prescribed term of office; and if, upon examination of the charter, it might be said that the assessors are subordinate officers, then by section 4 of the charter express provision is made whereby...