Inhabitants of Rumford v. Inhabitants of Upton

• Citation: 95 A. 226
• Parties: INHABITANTS OF RUMFORD v. INHABITANTS OF UPTON.
• Decision Date: 28 August 1915
• Court: Supreme Judicial Court of Maine (US)

95 A. 226

INHABITANTS OF RUMFORD

v. INHABITANTS OF UPTON.

Supreme Judicial Court of Maine.

Aug. 28, 1915.

Motion and Exceptions from Supreme Judicial Court, Oxford County, at Law.

Action by the Inhabitants of Rumford against the Inhabitants of Upton. Verdict for defendant, and plaintiff brings exceptions and moves for new trial. Sustained and granted.

Argued before SAVAGE, C. J., and KING, BIRD, HALEY, and HANSON, JJ.

James B. Stevenson and Aretas E. Stearns, both of Rumford, for plaintiff. James S. Wright and Alton C. Wheeler, both of South Paris, for defendant.

BIRD, J. This is an action brought to recover from defendant the expenses of pauper supplies furnished by plaintiff to one Annie Campbell, who at the time the supplies were furnished, in January, 1913, was the wife of one George R. Campbell, whose pauper settlement was then as plaintiff claimed, in defendant town. At the trial the admissions of the parties were such that there was but a single issue presented to the jury:

"Did the pauper have a pauper settlement in defendant town?"

. The verdict of the jury was in favor of defendant, and the case is before this court upon motion of plaintiff for new trial, and upon exceptions of plaintiff to the exclusion of evidence offered by it, and to the admission of evidence offered by defendant.

It appears from the evidence that George R. Campbell, upon attaining his majority, had no derivative settlement in defendant town, although he had resided there during the larger part of his minority. After attaining his majority, July 9, 1892, he continued to live in defendant town until September, 1910, but with periods of absence occurring subsequently to the last of March or 1st of April, 1897. It is as to the character of these periods of absence from defendant town that the contention of the parties arises; the defendant town claiming that George R. Campbell left it with intent to abandon his home and to acquire a residence elsewhere.

It will be necessary to consider the exceptions only.

The pauper's husband, George R. Campbell, being called as a witness for plaintiff, was inquired of by plaintiff's attorney as follows:

"What was your intention, from the time you became 21 years of age, in regard to maintaining a home in any place?"

Also, the witness having stated that he had paid a school tax to the state while living in Andover Surplus:

"What was your intention in regard to your home during all this time?"

And again:

"Whether or not at that time you intended to make your home in Andover Surplus?"

All these questions were excluded. Despite the indefiniteness of the first of the questions, the exceptions to their exclusion must be sustained. The intention with which one performs an act may be testified to by such party. 1 Gr. Ev. § 51a, note a; Edwards v. Currier, 43 Me. 474, 483, 484; Wheelden v. Wilson, 44 Me. 11, 19. See Knox v. Montville, 98 Me. 493, 495, 57 Atl. 792, where the distinction between direct testimony of the pauper himself and declarations of the pauper is indicated. See, also, Holyoke v. Holyoke, 110 Me. 469, 479, 87 Atl. 40, which cites Knox v. Montville, supra, with approval.

The exceptions are sustained.

The plaintiff produced and offered in evidence copies of the list of voters prepared by the selectmen of the town of Upton, and by them returned into the office of the clerk of that town, for sundry years, between the year 1897 and the year 1909, and offered to prove by the several clerks of the town, who made the copies, that they were true copies of the original lists, "and that the name of George R. Campbell appeared in each of said lists for each of said years." Plaintiff admitted its inability to prove that George R. Campbell ever voted in Upton. The court, assuming the lists to be proved true copies, excluded them, subject to exceptions.

The court has held that, in actions for pauper supplies, the assessors' records of assessments of taxes, showing the asessment or nonassessment of the pauper, without showing payment of the tax assessed, when an assessment has been made, are not admissible as showing the residence of the pauper. Rockland v. Union, 100 Me. 67, 68, 60 Atl. 705. See, also, Monroe v. Hampden, 95 Me. 111, 113, 49 Atl. 604. The assessors of taxes are public officers, and no element of principal and agent exists in their relations to the municipality.

"It is not liable to an action for their omissions or mistakes, unless made so by statute. No statute imposes a liability upon the municipality for an omission to assess a particular person or property. * * * The acts of the assessors, as shown by their records, were inadmissible upon the question at issue. * * * They were not admissions of the city of Rockland, nor its agents, and were not entitled to any weight as evidence for or against either party. * * * The assessors' acts reflected their opinion, founded perhaps upon erroneous information, or resulting from inadvertence or neglect of duty." Rockland v. Farnsworth, 93 Me. 178, 183, 184, 44 Atl. 681, 682.

In Rockland v. Union, 100 Me. 67, 68, 60 Atl. 705, after quoting from the case last cited, it is said:

"Standing alone, neither the act or omission of the assessors in the assessment or nonassessment of a tax on an individual can be evidence for or against a town on the question of the residence of such individual. The doings of its assessors in the assessment of taxes are not the acts or admissions of the town for they are not its agents. The assessment of a tax is no admission on the part of the pauper, unless coupled with its payment or his recognition of it in some manner as an existing liability. At the most the assessment * * * of a tax but represents the opinion of the assessors upon the question of residence or nonresidence of the pauper at the time, and cannot be evidence of the fact itself before another tribunal whose duty it is to determine that question, not by the opinion of others, but as they themselves find the fact."

The selectmen of towns, when performing the duties of a registration board (R. S. c. 5, §§ 34-46), like assessors of taxes, are public officers. Their duties are imposed and clearly defined by statute. In the performance of their duties they are not subject to the control of the municipality, and it has neither power to correct their errors nor liability therefor. They are in no sense the agents of the municipality. Standing alone—that is, without proof that George R. Campbell voted—the lists of voters offered in evidence were rightly excluded. The registration of a voter alone, like the mere assessment of a tax, is not binding upon, nor evidence against, a municipality as to the residence of the voter.

The vote of a person thus registered, however, shows, or has a tendency to show, the intention of such party when his residence is the subject of inquiry. See Belmont v. Vinalhaven, 82 Me. 524, 531, 20 Atl. 89; Monroe v. Hampden, supra, and cases cited. The exception is overruled.

It further appears from the bill of exceptions that:

"The defendant called as a witness the former wife of George R. Campbell, and for the purpose of showing that George R. Campbell had abandoned his home in Upton the defendant's attorney asked the following question:

"Q. What did he say to you about remaining in Dallas and living there with you, if you were married?"

"For the same purpose the defendant's attorney asked the same witness the following question:

"Q. Did you hear any conversation between Mr. Campbell and your father about his staying and living there with you and working for him?"

Both questions were admitted, subject to the objections and exceptions of plaintiff.

If offered specifically for the purpose alleged to have been expressed by defendant's attorney in the bill of exceptions, we should regard both questions as inadmissible. See Bangor v. Brunswick, 27 Me. 351; Corinth v. Lincoln, 34 Me. 310, 312; Deer Isle v. Winterport, 87 Me. 37, 43, 32 Atl. 718; Knox v. Montville, supra. The declarations do not appear to have accompanied any act material to the issue. Reference, however, to the evidence, which is made part of the bill of exceptions, indicates clearly that the offer of evidence was not accompanied by any avowal of its purpose. The plaintiff objected, but disclosed no grounds of objection. If admissible for any purpose, the admission was not error. It certainly tended to contradict the testimony of one of plaintiff's witnesses. Hovey v. Hobson, 55 Me. 256; McLaughlin v. Joy, 100 Me. 517, 62 Atl. 348. See, also, Dennen v. Haskell, 45 Me. 430; Lausier v. Hooper, 112 Me. 333, 335, 92 Atl. 179. The exception is not sustained.

The plaintiff called its treasurer,...