Inhabitants of Dresden v. Goud

Decision Date21 June 1883
Citation75 Me. 298
PartiesINHABITANTS OF DRESDEN v. DANIEL GOUD.
CourtMaine Supreme Court

ON REPORT.

The opinion states the case and material facts.

J W Spaulding and F. J. Buker, for the plaintiffs.

Joseph Baker, for the defendant.

DANFORTH J.

This is an action under the statute of 1874, c. 232, as amended in 1879, c. 158, to recover a tax assessed upon the defendant for the year 1881. One of the numerous objections to the maintenance of the action, is the allegation that the assessors for that year were not sworn as such. To this, two answers are made; one of fact and one of law. It is claimed that the proof shows that they were sworn, and if not, they were officers de facto, and as such, their acts were binding upon the defendant.

1. It appears from the records of the town, that no assessors were chosen for the year 1881. Hence by virtue of R. S., c. 6, § 75, the selectmen became the assessors, and the same section further provides that " each of them shall be sworn as an assessor." The only evidence we have of any oath having been administered to the persons elected selectmen, is a certificate taken from the records of the following purport: " 1881, March. Then Charles W. Bickford and Edwin F. Houdlett and Bradbury Blin, chosen selectmen for the ensuing year, severally made oath to faithfully and impartially perform the duties of their offices; before me. Attest, John H. Mayers, town clerk."

This may be sufficient evidence that the persons named were sworn as selectmen. The certificate alludes to them as selectmen but not as acting or proposing to act in any other capacity. The fact that the word " offices" is in the plural number, affords no aid, for that is equally applicable to the different offices of the several individuals, as to any other office which either might hold, or if to any other office it may as well have been overseers of the poor, or constable, or any other office to which they might have been chosen. The statute requires that " each of them shall be sworn as an assessor." The fact that this office devolves upon them by virtue of their election as selectmen, does not make the two, one office, but each retains its distinct character and each requires its distinct and proper oath. Yet in this certificate, the word assessor is not used, nor is there any language which we can understand as referring to that office. Hence there is an entire failure of evidence to show that each or either of these men was sworn as an assessor.

2. Assuming that these men, acting as they did as assessors, by color of an election which if legal, would have made them such, still the principles applicable to officers de facto, would not apply here. The question here presented involves necessarily the competency of the persons to do the act, or make the assessment. The statute requires as a condition precedent to the maintenance of the action, that the tax should be " legally assessed," and the proper oath is a condition precedent to the authority of the assessors to assess. No oath, no competency; no competency there can be no legal assessment.

Besides, the defendant is not a third person, nor is there any third person to avail himself of the act, or attack the assessment collaterally. The act operates directly upon the defendant. It is his property and his alone that is at stake, and the contest is not a collateral one, but a direct impeachment of the legality of the assessment. True the assessors are not a party to the action, but the town which stands in their place and which they represented, is such party and has no more rights simply because the...

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5 cases
  • Martin v. Barbour
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • April 1, 1888
    ... ... 318; ... Isaacs v. Wiley, 12 Vt. 674; Ayers v ... Moulton, 51 Vt. 115; Dresden v. Goud, 75 Me ... The ... list of delinquent lands and notice of sale were required ... ...
  • Inhabitants of Wellington v. Small
    • United States
    • Maine Supreme Court
    • April 24, 1896
    ...of the voters of the town, legally called and notified, and that said assessors were sworn previously to assessing the tax. Dresden v. Goud, 75 Me. 298, 299. (7) That the whole of the taxes thus assessed upon all the taxable inhabitants of the town, including the defendant, were committed t......
  • Jordan v. Hopkins
    • United States
    • Maine Supreme Court
    • December 12, 1892
    ...admitted that Remick, who was not sworn as assessor, could not legally act in that capacity, and it is so settled by the case of Dresden v. Goud, 75 Me. 298. But the plaintiff contends that, although Remick was not sworn as an assessor, the original board were legally sworn as assessors, an......
  • Inhabitants of Orneville v. Palmer
    • United States
    • Maine Supreme Court
    • June 29, 1887
    ...qualify by taking the oath of office in the manner prescribed by statute before they can assess a legal tax. Rev. St. c. 3, § 24; Dresden v. Goud, 75 Me. 298. The statute provides that assessors may be sworn "by the town or parish clerk, or by any person authorized by law." Rev. St. c. 3, §......
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