Mussey v. White

• Decision Date: 01 May 1825
• Citation: 3 Me. 290
• Parties: MUSSEY v. WHITE & AL
• Court: Maine Supreme Court

3 Me. 290

MUSSEY v. WHITE & AL

Supreme Judicial Court of Maine, Cumberland

May, 1825

[Syllabus Material] [Syllabus Material] [Syllabus Material]

THIS was trespass of assault, battery, and false imprisonment brought against the assessors of the town of Standish; who pleaded the general issue, and also justified under due proceedings against the plaintiff for non-payment of his taxes, which was traversed, and issue joined thereon.

At the trial, before Weston J. the plaintiff proved his arrest and imprisonment by one Joseph Bayley, the collector, under authority of a paper purporting to be a warrant to him, signed by White and Tompson, the defendants; and Bayley appeared to have been duly chosen and sworn as constable and collector of the town of Standish, at a meeting holden in March 1821, unless the want of proof of an alphabetical list of voters having been prepared for such meeting, rendered the same invalid.

The plaintiff also proved his detention in prison till he paid the sum of three hundred and twenty-four dollars and seventy cents.

To support their justification the defendants proved by the town record that they, and William Hasty, Jun. were elected as selectmen and assessors of Standish, as there stated, at a meeting of the inhabitants thereof holden March 22, 1821, but whether elected by ballot or not, did not appear. It was objected by the plaintiff that no proof was offered that an alphabetical list of voters was prepared before, or used at, this meeting, but the Judge, for the purposes of this trial, ruled that such proof was not necessary.

The defendants further proved that on the 24th day of March 1821, Tompson was sworn as selectman and assessor; and that on the 26th day of the same month White and Hasty were also sworn in the same manner; --and that afterwards, at an adjournment of the meeting above mentioned, holden on the 30th day of April 1821, Tompson, White and Hasty, were elected assessors by ballot, but it did not appear that they were afterwards sworn as assessors.

The assessors did not give to the plaintiff any personal notice to render to them any list of his rateable polls or estate; nor did they post up any general notification requiring the inhabitants of Standish so to do. But it was proved by the defendants that it was the practice of the assessors of Standish to give personal notice to the inhabitants for that purpose; that such was the course they adopted that year; --and that they did give notice to several persons, and attempted to notify the plaintiff. And the jury, upon being requested by the Judge to answer to this fact, found that the assessors used due diligence to give notice to the plaintiff, but that he went away and remained absent for the purpose of avoiding it.

The defendants also exhibited a book on which was written at some unknown time, the words " Valuation 1821," but it had no other title. It contained a schedule of taxable estates of inhabitants of Standish, and among others of the plaintiff, whose real estate was set down at $ 2171, against which, in a column headed " faculty," was put the sum of $ 130 26. In the same book was what the defendants exhibited as an assessment of taxes against the inhabitants of Standish. It was not so entitled; but the words " State, county and town tax for the year 1821" were legibly written on the first page of it. At the end of the book was written " Standish, August 27, 1821, William Tompson, Mark White, Assessors.

No copy of this valuation was lodged with the town clerk; but it was proved that the assessors had an office in which they transacted their official business, which was generally known to the inhabitants of Standish; --that the valuation and assessment were lodged in that office, open to public examination: and that the town clerk kept his papers in the same office, but transacted his business in a store kept in the room below. The jury, being requested by the Judge to settle this fact also, found that the valuation was seasonably lodged in the assessor's office, about the time it was made.

The warrant by which Bailey the collector arrested the plaintiff, though dated August 27, 1821, was not delivered to him till October 9, 1822, the day before the arrest; at which time it was delivered to him by Tompson, who was assessor for 1822, though White was not. But it was proved that when the assessors delivered the tax bills to the collector, the warrant was duly made out and ready to be delivered; but that by mistake they delivered to him the commitment of the bills, as it is termed, being a direction to collect the taxes, instead of the warrant of distress, without discovering the error till the collector informed Tompson of it on the day before the arrest. This warrant had but one seal; and it stated that the list following was an assessment on the polls and estates of the persons therein named, amounting to such a sum, contained in twenty eight pages, which they thereby committed to him to collect; --directing him to whom, and at what times to make payment of the monies collected; and to distrain the goods or chattels, and in want thereof the bodies of delinquents; --giving, in substance, the directions given in the statute; but not containing any formal command in the name of the State, nor referring to any statute, or reciting any prior proceedings, as the foundation of the authority given in the warrant. This warrant, the plaintiff insisted, was not conformable to law; and that the defendants had no right to deliver it to the collector so late as October 1822.

It was also proved that the inhabitants of Standish had assumed the defence of this suit.

The Judge hereupon directed the jury to find a general verdict for the defendants; reserving for the consideration of the whole Court the questions whether the evidence was competent or sufficient to support the justification, as to the points to which it was applied; and whether what the defendants omitted to prove was essential to their defence.

Motion overruled and judgment on the verdict.

Emery and Potter, for the plaintiff, now took the following exceptions to the proceedings of the defendants, as disclosed by the evidence.

1. It appears that an alphabetical list of persons entitled to vote was not prepared previous to the town meeting for the choice of officers. This document is of vital importance to the order and purity of elections, and the law has recognized its value in these respects, by allowing no person to vote till it is ascertained that his name is on the list. Stat. 1821, ch. 115, sec. 15. Wheeler v. Russell 17 Mass. 258. Springfield Bank v. Merrick 14 Mass. 322. Russell v. De Grand 15 Mass. 35. These authorities shew that it is not in the power of the town to dispense with this necessary preliminary, because it would be against law. Such an agreement would be void.

2. The defendants, in March, were chosen selectmen and assessors, but not by ballot; after which, in the same month, they were sworn. In April they were elected assessors by ballot, but not again sworn. If they acted as assessors under their election in March, that was void, not being by written ballot; --if under the choice in April, their proceedings are void, they not having been sworn. The law authorizes selectmen to act as assessors only where the town neglects or refuses to choose, or they decline serving. But here the town did not neglect, but actually elected them; and the same individuals being both selectmen and assessors, the capacity in which they acted could only be known by their own declarations, and by this evidence they assumed to act as assessors.

3. The assessors did not give notice to the inhabitants to bring in lists of their polls and taxable estates. If the plaintiff was absent to avoid personal notice, this does not excuse the defendants, who should have done all in their power to make the notice public, by posting it up in public places in the town. Such an apology would not protect an officer neglecting to serve a writ on a trustee; nor excuse a party bound to tender performance of a duty; and it ought not to avail the defendants.

4. The valuation and assessment are not entitled as being of polls and estates in Standish; and, for aught appearing on them, may have belonged to any other town. Portland Bank v. Apthorp 12 Mass. 252. Thurston v. Little 3 Mass. 429. 10 Mass. 105. And the former is illegal, as it includes " faculty" as a proper subject of taxation, which is incapable of pecuniary estimation, and is not enumerated in the statute.

5. Nor was any copy of the valuation and assessment lodged in the office of the town clerk or assessors, as the statute requires.

6. The warrant is not in the form prescribed by the statute. It was in the nature of a writ of execution, and ought to recite the authority on which it assumes to invade private property.

7. And it was not delivered to the officer for service till long after the offices of the assessors had expired, and so was no legal authority to him. It is for the interest of the State that the collector should have his warrant of distress delivered with his tax bill; and any neglect of this duty in the assessors ought not to receive the protection of the law.

Fessenden and Deblois for the defendants, replied to the first of these objections that the record was conclusive evidence of the legality of the meeting. Thayer v. Stearns & al. 1 Pick. 109. 14 Mass. 320. And if not, yet it was not the duty of these assessors to prepare the list, but of their predecessors in office; nor are these defendants liable in trespass for any neglects of duty but their own.

To the second they answered that it appearing of record that they were chosen assessors, the presumption of law is that the choice was...