Inhabitants of Town of Warren v. Norwood

• Decision Date: 20 December 1941
• Citation: 24 A.2d 229
• Parties: INHABITANTS OF TOWN OF WARREN v. NORWOOD.
• Court: Maine Supreme Court

24 A.2d 229

INHABITANTS OF TOWN OF WARREN

v. NORWOOD.

Supreme Judicial Court of Maine.

Dec. 20, 1941.

[Copyrighted material omitted.]

On Exceptions from Superior Court, Knox County.

Writ of entry proceeding by the Inhabitants of the Town of Warren against Samuel E. Norwood, to establish title to realty. On defendant's exceptions to acceptance of referees' report in favor of plaintiffs.

Exceptions overruled.

Before THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Chas. T. Smalley, of Rockland, for plaintiff.

Elisha W. Pike, of Rockland, for defendant.

MURCHIE, Justice.

By writ of entry, the plaintiff town here seeks to assert a title claimed to have been acquired under the operation of Chapter 244 of the Public Laws of Maine 1933, as amended. The tax, on which the lien sought to be enforced is based, was assessed against defendant as owner of the property in 1937. The lien certificate expired August 18, 1939. The writ, dated April 3, 1940, was served April 5, 1940.

The statute was designed, according to legislative pronouncement incorporated therein, to provide a method, additional to those already established, for the enforcement of liens on real estate created by the assessment of taxes pursuant to Section 3 of Chapter 13 of the Revised Statutes (1930). Since the enactment of the statute, it has been thrice amended. No particular amendment is of importance in the present cause, but each change shows intention on the part of the Legislature to extend the operation of the act and make it more workable. Thus in 1935 (Chapter 28) the original restriction against use of the method by collectors of taxes in plantations was eliminated; in 1937 (Chapter 136) provision was made that notices by registered mail should be sufficient for non-resident owners; and in 1939 (Chapter 85), with other changes tending to simplification and eliminating differences in process for resident and non-resident proprietors, provisions were made for cases where the record owner against whom a tax was assessed died prior to demand, where assessment was against the heirs or devisees of a deceased person, and where assessment was against someone other than the record owner.

The case was heard by referees under a rule which reserved the right of exceptions on questions of law and is properly before the court under that reservation. The referees found for the plaintiff as to the first of two parcels described in the writ. Objections to the acceptance of their report were seasonably filed by the defendant, and the report having been accepted, the case comes forward with the seven stated grounds of objection urged as the exceptions.

The record discloses that the tax was assessed prior to May 8, 1937; that it was committed to the collector of taxes, by warrant dated that day; that notice in writing was left at the home of the defendant on February 2, 1938, which, while no copy was retained by the collector, must be assumed to have contained the necessary recitals, i. e. the amount of the tax, a description of the property, an allegation that a lien was claimed, and a demand for payment within ten days, since defendant made no denial thereof, and his counsel has not challenged its sufficiency; that a certificate, in appropriate form, was recorded in the proper registry office, on February 19, 1938; and that a true copy thereof was filed with the town treasurer the same day.

The sixth alleged exception challenges the validity of the tax assessment. This is considered first because unless the tax was properly assessed, there was no tax lien to enforce and no one of the questions raised by the additional exceptions can be considered as pending before us for determination.

The principle that strict compliance with statutory requirements is necessary to divest property owners of their titles for non-payment of taxes has become firmly established by a long line of decisions running back to one rendered by our first Chief Justice at the beginning of our statehood, Porter v. Whitney, 1 Me. 306. For later cases, see Brown v. Veazie, 25 Me. 359; Hobbs v. Clements, 32 Me. 67; Bowler v. Brown, 84 Me. 376, 24 A. 879; Baker v. Webber, 102 Me. 414, 67 A. 144. In these cases the issue was between an individual claiming as purchaser at a tax sale and the owner against whom the tax was assessed, or one claiming under him, but the same principle, notwithstanding the implication in Bowler v. Brown, supra, that it was particularly applicable to controversies "between the purchaser at a tax sale and the original owner", has been recognized where the issue was between the municipality and the assessed owner, Inhabitants of Williamsburg v. Lord, 51 Me. 599; Inhabitants of Orono v. Veazie, 57 Me. 517; City of Old Town v. Robbins, 134 Me. 285, 186 A. 663, or between a purchaser from the municipality, after the expiration of the redemption period, and the grantee of such owner, Van Woudenberg v. Valentine, 136 Me. 209, 7 A.2d 623.

Defendant is entitled to the benefit of this principle, reasonably applied to the facts of the instant case. The exact limits of such application have never been defined, but numerous decisions reject tax titles, some on the ground of irregularity or deficiency in procedure following assessment of the tax, Porter v. Whitney, supra; Brown v. Veazie, supra; Hobbs v. Clements, supra; Van Woudenberg v. Valentine, supra; and others for invalidity in the assessment itself, Inhabitants of Williamsburg v. Lord, supra; Inhabitants of Orneville v. Palmer, 79 Me. 472, 10 A. 451; Bowler v. Brown, supra.

Allegation of the exception is that, "the assessment * * * was null and void, in that there was no legal Board of Assessors".

In the brief of counsel, and in the oral argument, the sole ground urged for this claim was election, at annual town meeting, of three assessors, including one C. T. Moody, and later election, at special town meeting held 26 days later, of P. D. Starrett "to fill vacancy caused by the resignation of C. T. Moody", with no evidence to establish the fact of resignation. To quote the exact claim, assertion in the brief was, "I submit that four assessors, is not a legal Board, and the assessment made by all or any three of them is invalid and null and void."

Intention must be to allege that a board of four is not a legal board when voters originally elect a board of three, since it is plain under our statutes, which have remained unchanged upon the point for more than one hundred years, R.S.1930, C. 5, Sec. 12, following a change from the original provision of "three or five meet persons, to be Assessors" (Laws 1821, C. CXVI, Sec. 1), that a town may properly elect a board of four if it desires. Whether or not the majority of a board may legally assess taxes, a question raised in Jordan v. Hopkins, 85 Me. 159, 27 A. 91, but not decided because participation by a selectman who had not been sworn as an assessor was held to invalidate the assessment, it seems unnecessary to decide in this case, since no authority is offered for the claim that a vacancy by resignation must be proved. In Gould v. Monroe, 61 Me. 544, this court recognized a vacancy in the office of collector of taxes on the basis of the refusal of the elected official to serve without evidence of such refusal, and cited with approval a Massachusetts case to the same effect, Hays v. Drake, 6 Gray 387.

Neither in his principal brief nor oral argument did counsel for defendant offer any foundation for this sixth exception other than the foregoing, but as a reply brief he refers the court to R.S.1930, Chapter 5, Section 5, which establishes governance for town meetings by a declaration that warrants therefor shall state in distinct articles the business to be transacted thereat and that "no other business shall be there acted upon." The transcript of testimony contains excerpts from the town records showing that the qualified inhabitants of the plaintiff town met pursuant to a "foregoing warrant" on March 1, 1937, and again on March 27, 1937, and under listed article numbers elected three selectmen and three assessors, a tax collector, and a town clerk, at the meeting of March 1, and a "first assessor to fill vacancy etc.", at the meeting of March 27.

The transcript discloses that a book which contained the town records was presented before the referees and examined by counsel for defendant; that thereafter the validity of the election of the assessors and the tax collector, the election of the clerk, and the election and qualification of P. D. Starrett as assessor were questioned, and issue was raised as to the eligibility of the treasurer, elected the following year; that excerpts showing the election of the designated officers in 1937 were read into the testimony at the request of defendant's counsel, who expressly stated that he raised no objection "as to other matters appearing in the records of the town meeting"; and that his cross-examination of the town clerk related only to the method of voting, the qualification of the officers, and the eligibility of the treasurer. Had the book failed to support the recital, "Pursuant to the foregoing warrant", with which the record of each meeting commenced, or shown that action taken under any article exceeded that authorized thereunder, very simple questioning in cross-examination would have terminated the case in favor of defendant before the referees. In the absence of evidence to the contrary, we think it must be assumed that all action taken at the meetings was properly taken under the warrants by which they were convened. Such assumption comes within the rule that in the absence of evidence to show the contrary, it will be presumed that a town has proceeded in the usual and legal manner. Mussey v. White, 3 Me. 290; Blanchard v. Dow, 32 Me. 557; Hathaway v. Inhabitants of Addison, 48 Me. 440; Inhabitants of Wellington v. Inhabitants of Corinna, 104 Me. 252, 71 A. 889. The decision of the referees...