City of Rockland v. Rockland Water Co.

• Decision Date: 27 December 1889
• Citation: 82 Me. 188,19 A. 163
• Parties: CITY OF ROCKLAND v. ROCKLAND WATER CO.
• Court: Maine Supreme Court

19 A. 163

82 Me. 188

CITY OF ROCKLAND

v. ROCKLAND WATER CO.

Supreme Judicial Court of Maine.

Dec. 27, 1889.

(Official.)

Report from supreme judicial court, Knox county.

Action of debt by the city of Rockland against the Rockland Water Company. Judgment for the city, and defendant appeals.

T. P. Pierce and E. K. Gould, for plaintiff. W. L. Putnam and J. O. Robinson, for defendant.

HASKELL, J. Debt for a tax. The defendant was domiciled in plaintiff: city, and liable to taxation there. A tax was laid upon specific parcels of defendant's real estate, valued at $1,100, which it promptly paid, and upon "aqueducts, pipes, conduits, pumps, and other personal property, including money on hand or at interest," valued in gross at $30,000. To recover the tax assessed and laid upon the last item of valuation, and interest thereon, this suit was brought.

1. This is not the case of a tax-payer not domiciled within the jurisdiction of the assessors who laid the tax, and not liable to be assessed for a personal tax at all, as in Briggs v. Lewiston, 29 Me. 472, and Hathaway v. Addison, 48 Me. 440, and Martin v. Portland, 81 Me. 293, 17 Atl. Rep. 72, and Preston v. Boston, 12 Pick. 7; or, if within their jurisdiction, not liable to taxation, as in Sumner v. First Parish, etc., 4 Pick. 361, and Manufacturing Co. v. Pawtucket, 7 Gray, 277, and Hospital v. Somerville, 101 Mass. 319, or as in Torrey v. Millbury, 21 Pick. 64, where a part of the assessment was laid without authority of law, and could be distinguished; but rather a case of overvaluation, as Stickney v. Bangor, 30 Me. 404, and Hemingway v. Machias, 33 Me. 445, and Gilpatrick v. Saco, 57 Me. 277, and Waite v. Princeton, 66 Me. 225, and Bath v. Whitmore, 79 Me. 182, 9 Atl. Rep. 119, and Osborn v. Danvers, 6 Pick. 98, where a resident of Danvers sued to recover back a tax laid upon personal property invested in business in another state, and the court held that the action could not be maintained, because it was a case of overvaluation, and that the only remedy was under a statute similar to ours, providing a method to procure an abatement.

The law is clearly stated in Howe v. Boston, 7 Cush. 273, 275. The court says: "We consider the rule well settled in this commonwealth that, where a party is rightfully taxed for any personal or any real estate, his remedy, and his only remedy, for any excess of taxation, is by application for an abatement. * * * But, on the other hand, if a person not legally liable to be taxed in a city or town is nevertheless assessed there, then the assessment is regarded as wholly in valid. * * * Personal estate follows the domicile, and is assessed to the owner in the place of his residence. Real estate is assessed in the town or city in which it is situated, to non-residents as well as residents. The former constitutes no lien on the property; the latter creates one on the premises assessed, for the amount assessed thereon.' These differences in the mode of assessing and collecting taxes on personal and real property have caused each to be regarded, in law, as a separate and distinct class or subject of taxation, in relation to which the remedies of parties are entirely separate and distinct. * * * But this distinction goes no further than to allow the validity of an assessment on each class or subject of taxation to be determined by itself, irrespective of the other; * * * and, in order to render the whole tax invalid on either kind of property, * * * it must be made to appear that the party aggrieved was not liable to assessment for any part of that class or subject of taxation of which he complains. * * * It follows, therefore, that a party cannot be permitted to go behind the assessment, either on personal or on real estate, and look into the details and particulars of which the entire valuation is made up, and claim to recover back a portion of an entire assessment, on the ground that it included property of which he was not the owner, and for which he was not liable to assessment." Lincoln v. Worcester, 8 Cush. 55; Bourne v. Boston, 2 Gray, 494; Salmond v. Hanover, 13 Allen, 119.

How do these doctrines affect the case at bar? Clearly the intention of the assessors was to lay the tax in question upon personal property only. They had already assessed defendant's real estate separately. If the assessment were upon personal property alone, it would not be contended by defendant's counsel that the assessment would be insufficient to support the plaintiff's action. Tobey v. Wareham, 2 Allen, 594; Noyes v. Hale, 137 Mass. 266; Bemis v. Caldwell, 143 Mass. 299, 9 N. E. Rep. 623.

The assessment specifies, at least, some personal property liable to taxation; and was therefore legally laid, as a tax, upon that class of property. If the assessment was too large, for any reason, either from including property that the defendant did not own, or that was exempt from taxation, or that could not be lawfully taxed as personal property, it is clearly a case of overvaluation, that cannot be set up in defense of this action.

What matters it whether "aqueducts, conduits," etc., are real estate, under the doctrines of Hall v. Benton, 69 Me. 346, and Kittery v. Portsmouth Bridge, 78 Me. 93, 2 Atl. Rep. 847; or whether they are exempt from taxation under Rev. St. c. 6, § 6, par. 10, because used by the city for the extinguishment of fires without charge? In either case, when classed with personal property subject to taxation, under a valuation in solido, the result must be an overvaluation, — a valuation larger than can be justly placed upon the property liable to taxation. In such case abatement proceedings alone can fairly...