Inhabitants of Levant v. Penobscot County Com'rs

• Citation: 67 Me. 429
• Parties: INHABITANTS OF LEVANT, petitioners for certiorari, v. COUNTY COMMISSIONERS OF PENOBSCOT COUNTY.
• Decision Date: 31 October 1877
• Court: Supreme Judicial Court of Maine (US)

67 Me. 429

INHABITANTS OF LEVANT, petitioners for certiorari, v. COUNTY COMMISSIONERS OF PENOBSCOT COUNTY.

Supreme Judicial Court of Maine.

October 31, 1877

ON REPORT.

PETITION for certiorari representing as follows:

" That at a court of the county commissioners, for said county, held at Levant, by adjournment on November 17, 1875 the petition of Daniel Hall of said town, was presented praying for an abatement of the taxes assessed to him by the assessors of said town, for the year 1875, and a hearing was had thereon; and the said county commissioners upon said petition, undertook to abate said tax, and adopted certain proceedings for that purpose, which are recorded and fully appear in the records to be adduced and exhibited herein.

And your petitioners represent and show that said county commissioners had no jurisdiction of said petition, and their acts in making said abatement were erroneous, and the records thereof are erroneous and illegal in the several particulars and for several causes, which are recited and annexed to this petition and made a part thereof, upon which your petitioners rely for its support.

Wherefore your petitioners pray that this court will issue its writ of certiorari, ordering the said county commissioners to certify their records relating to the abatement of said tax, that they may be presented in court, to the end that the same or so much thereof as may be illegal, may be quashed."

The causes of error assigned were as follows:

" 1st. Because it does not appear in said county commissioners' records that said Daniel Hall made true answers to all proper questions, in writing, which were put to him by the assessors of said town in relation to his list or inventory there produced by him. Nor, is it true, in fact, as will be seen by the following questions put by said assessors and the answers thereto made by said Hall:

Ques. 1st. Has your wife, or any member of your family, any money not included in your schedule? Ans. They have not.

Ques. 2nd. Have you any money in savings banks? Ans. I gave in all liable to taxation.

Ques. 3d. Who owes you the two hundred dollars given in in your schedule? Ans. I will not answer that question.

Ques. 4th. Do you object to tell who owes you and whom you owe? Ans. I do.

Ques. 5th. Did you strike any balance in your accounts when you got the two hundred dollars, given in by you? Ans. It is no matter, sir.

Ques. 6th. I think you had better answer these questions or we may tax you with more? Ans. I expect it, sir.

Ques. 7th. Then you will answer no questions as to the situation of your money? Ans. No, sir; it is not proper. I have sworn to my inventory and that is enough for you, sir.

2nd. Because it does not appear in said county commissioners' records, nor is it true, in fact, that any written application was made to said assessors to abate said tax, or that they gave judgment not to abate from which an appeal would lie to said commissioners."

The following is a copy of the record:

" Having fully heard the parties, examined the testimony of their witnesses, and listened to the arguments of counsel, and having duly and carefully considered the same, we find that the assessors of said town for the tax year beginning on the first day of April, A. D. 1875, gave notice to the inhabitants as required by section 65 of the revised statutes of this state.

We find that Daniel Hall, the petitioner in this case, was an inhabitant of said town on the first day of April, A. D. 1875.

We find and adjudge that the said petitioner, at the time and place designated by the assessors in their said notice, made and personally brought into them, a true and perfect list of all his estate, real and personal, not by law exempt from taxation, which he was possessed of on the first day of April of that year, and that he produced said list to the assessors, and at their request duly swore to its truth.

We find and adjudge that said petitioner, then and there answered certain proper inquiries as to the nature and situation of his property, made of him by the assessors, and that he was not required to reduce his answers to writing, or to subscribe and make oath thereto.

We find and adjudge that said petitioner was assessed and taxed a state, county and town tax in said town for said tax year by the assessors thereof, on property that he was not possessed of on said first day of April, or liable to taxation for, and which was not on the list by him made, brought into the assessors and sworn to as aforesaid, to wit: the sum of eight hundred dollars, money, on hand and at interest, and to that extent he was overrated.

We find that the rate per cent. of said taxation was, in all two cents and three and one-half mills on each and every dollar, and that the total of said state, county and town tax on said eight hundred dollars, was eighteen dollars and eighty cents.

We find and adjudge that the petitioner after said assessment, and before he applied to us, duly made application to said assessors within the time required by law to abate the tax on said eight hundred dollars and that they refused so to do.

We therefore adjudge and order that the petitioner, the said Daniel Hall, be relieved from the tax upon said eight hundred dollars, and that said tax be abated and that he be reimbursed from the treasury of the town, aforesaid, the amount of the tax on said sum, to wit: eighteen dollars and eighty cents; and that said town pay into the county treasurer within sixty days, the incidental charges arising under our action, amounting to fifty-one dollars and seventy-two cents, taxed as follows: [Items omitted.] (Signed) William H. Chesley, B. B. Thomas, W. B. Ferguson, Commissioners of Penobscot county.

And thereafterwards, on the 28th day of December, the said inhabitants of Levant, by their attorneys, Barker & Son, filed their objections in writing to the report of said county commissioners, and the petition was thence continued to this term.

And now said objections having been considered by the county commissioners are overruled.

And now all proceedings thereon are closed."

A true copy. Attest: James H. Burgess, clerk.

The substance of other documents and proofs, so far as they are material, appear in the opinion.

L. Barker, T. W. Vose & L. A. Barker, for the petitioners.

J. Hutchings, county attorney, for the respondents.

VIRGIN J.

By the provisions of R. S., c. 77, §§ 3 and 4, this court " has the general superintendence of all inferior courts for the prevention and correction of errors and abuses, where the law does not expressly provide any remedy; and it may issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all writs and processes necessary for the furtherance of justice or the execution of the laws." The law not having " expressly provided any remedy" for correcting the errors of the board of county commissioners in their adjudications relating to the abatement of taxes, parties aggrieved by their decisions in matters of law, may, under the general authority contained in the above provisions, seek redress in this court.

A writ of certiorari is, in some respects, similar to a writ of error, and in others, dissimilar. The former, unlike the latter, is not a writ of right and it lies where the proceedings sought to be revised, like those now under consideration, are not according to the course of the common law. R. S., c. 102, § 13.

Generally a writ of certiorari is grantable only at the sound discretion of the court, when it appears that otherwise some injustice would be done. Rand v. Tobie, 32 Me. 450. If the tribunal whose record is sought to be quashed had jurisdiction and the error assigned mere matter of form and substantial justice was done, a denial of the writ is no violation of the party's essential rights. West Bath v. Co. Com. 36 Me. 74. Furbush v. Cunningham, 56 Me. 184. If, however, the tribunal had no jurisdiction in the premises, the court, on petition of a proper party, ( Bath B. & T. Co. v. Magoun, 8 Me. 292) will not refuse the writ, the wrong and injury in such cases consisting in the assumption and exercise of an authority not conferred by law. Bangor v. Co. Com. 30 Me. 270. Goodwin v. Co. Com. 60 Me. 328, 330. State v. Madison, 63 Me. 546, 550. Fairfield v. Co. Com. 66 Me. 385. Winslow v. Co. Com. 37 Me. 561, so far as it is inconsistent with the last proposition, is not sound law.

The statute leaves the practice in matters of this kind as " heretofore established, and subject to such further regulations as may from time to time be made by the court." R. S., c. 102, § 13. An examination of the reported cases in this state shows that the course of procedure has not been so uniform in some respects, as is desirable; and we have found much hesitation and uncertainty in the proceedings at nisi prius. It has been the invariable practice, however, to hear the whole case upon the petition; and from this fact, the judgment on the petition granting the writ, has in some instances been erroneously deemed by the parties, ipso...