Inhabitants of Wellington v. Small

• Decision Date: 24 April 1896
• Citation: 89 Me. 154,36 A. 107
• Parties: INHABITANTS OF WELLINGTON v. SMALL.
• Court: Maine Supreme Court

36 A. 107

89 Me. 154

INHABITANTS OF WELLINGTON

v. SMALL.

Supreme Judicial Court of Maine.

April 24, 1896.

(Official.)

Exceptions from supreme judicial court, Piscataquis county.

This was an action of debt to recover taxes due from Forrest A. Small, defendant, to the town of Wellington for the years 1889, 1890, 1891, 1892, and 1893. The declaration contained a separate count for the taxes of each year, and, mutatis mutandis, were the same. The first count is as follows: "* * * For that the said Forrest A. Small on the 1st day of April, A. D. 1889, at Wellington, was an inhabitant of said town of Wellington, and liable to taxation therein, and then and there was the owner of personal property; and then and there Isaac Hutchins, Albert Allen, and John Pease were the duly elected and legally qualified assessors of said town of Wellington, and the said assessors did duly and legally assess upon the poll of the defendant, and upon the personal property of the defendant, as his proportion of the town taxes and the due proportion of the state and county taxes allotted to said town of Wellington for the year then current, the following sums, to wit, upon his poll the sum of one dollar, and upon his personal property the sum of seven dollars and ninety-four cents, —in all, the sum of eight dollars and ninety-four cents. And the said assessors there-afterwards, to wit, on the 12th day of August, A. D. 1889, did make a perfect list thereof under their hands, and commit the same to John M. Small, who was then and there duly elected and qualified collector of the said town of Wellington, with a warrant in due form of law, of that date, under the hands of said assessors. And the plaintiff further avers that the payment of said tax has been duly demanded of said defendant by said collector prior to the commencement of this suit, and the municipal officers gave written directions to bring this action. Whereby, and by reason of the statute in such case made and provided, an action hath accrued to the plaintiffs to have and recover of said defendant the sum of twelve dollar's and nineteen cents."

The defendant's general demurrer to the declaration having been overruled, he took exceptions. Exceptions overruled.

Counsel argued: (1) That the declaration should allege the whole amount of tax raised by the town each year as a town tax, and that it was raised by vote at a meeting legally called and notified. (2) It should allege the defendant's proportion of that amount. (3) It should allege the amount of the state tax and of the county tax, and the defendant's proportion of them. (4) It should allege the whole amount of the defendant's proportion of the town, state, and county taxes. (5) That the assessment was made upon all the taxable inhabitants of the town, including the defendant, each being assessed according to the just value of his property. (6) That the assessors, naming them, were citizens of the town, elected at a meeting 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 to a collector, with the proper tax warrant, with a statement showing how the particular collector having such taxes was chosen and sworn, or otherwise authorized to act (8) That the selectmen of the town had in writing directed the collector to commence an action of debt in the name of the inhabitants of the town against the defendant, and that such direction was given prior to the commencement of the suit. Inhabitants of Orono v. Emery, 86 Me. 362, 29 Atl. 1095; Inhabitants of Cape Elizabeth v. Boyd, 80 Me. 318, 319. 29 Atl. 1062; Gilmore v. Mathews, 67 Me. 519, 520.

Counsel also cited Blanchard v. Stearns, 5 Metc. (Mass.) 302; Ladd v. Dickey, 84 Me. 194, 24 Atl. 813; Bowler v. Brown, 84 Me. 378, 24 Atl. 879; Lord v. Parker, 83 Me. 534, 22 Atl. 392; Jordan v. Hopkins, 85 Me. 160, 27 Atl. 91.

H. Hudson, for plaintiff.

D. D. Stewart, for defendant.

STROUT, J. This is an action of debt to recover taxes assessed to the defendant, and comes before us on general demurrer to the declaration. It contains all the allegations that were in the writ in York v. Goodwin, 67 Me. 260, which were held by this court to be sufficient. That decision was approved in Vassalboro v. Smart, 70 Me. 305.

Since those decisions, an amendment of the statute provides that the mayor and treasurer of cities, or the selectmen of any town, or assessors of any plantation, to which a tax is due, "may, in writing, direct an action of debt to be commenced in the name of such city, or of the inhabitants of such town or plantation, against the party liable." Under this statute, it has been held by this court that no action can be commenced or maintained in the name of the town to...