Stockman v. City of South Portland

• Decision Date: 01 April 1952
• Citation: 87 A.2d 679,147 Me. 376
• Parties: STOCKMAN v. CITY OF SOUTH PORTLAND.
• Court: Maine Supreme Court

Page 679

87 A.2d 679

147 Me. 376

STOCKMAN v.CITY OF SOUTH PORTLAND.

Supreme Judicial Court of Maine.

April 1, 1952.

Elton H. Thompson, Walter F. Murrell, Robert D. Rich, Portland, for plaintiff.

George W. Weeks, Portland, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions.This is an action on the case to recover for taxes claimed to have been illegally assessed and collected.The action was referred under rule of court with right of exceptions as to matters of law reserved by both parties.The action was to recover taxes assessed upon the plaintiff's real estate for the years 1946, 1947, 1948 and 1949 which had been paid by his guardian.It was claimed by the plaintiff that the property on which these taxes were assessed was exempt from taxation under the provisions of R.S. c. 81, § 6, par.X, and especially that portion of the paragraph which exempts from taxation, 'the estates, to the value of $3,500 of all male or female veterans who have served in the armed forces of the United States during any federally recognized war period and who were honorably discharged, who shall have reached the age of 62 years, or are receiving a pension or compensation from the United States Veterans' Administration for total disability, * * * provided, however, that no exemption shall be allowed hereunder in favor of any person who is not a legal resident of this state;'

The referee found in favor of the plaintiff in the sum of $383.30, being the amount of the taxes assessed and interest.The report of the referee having been offered for acceptance, the defendant filed written objections thereto.The objections, eight in number, were overruled and the report accepted.The case is now before us upon defendant's exceptions to the action of the Justice of the Superior Court in overruling the objections to, and accepting the referee's report.

The 4th written objection to the referee's report is as follows: 'There is no sufficient evidence in the record to prove that an exemption from taxation of the real estate of Plaintiff's ward was warranted in that there is no evidence that the Plaintiff's ward was a legal resident of the State of Maine in the years 1946-1947-1948-1949.'The transcript of evidence, which is made a part of the bill of exceptions, contains no evidence of and is entirely silent as to the residence of the plaintiff.

Unless the plaintiff was entitled to the exemption claimed by him, he cannot recover.It is a well settled principle of law that whoever claims the right to an abatement or exemption from taxation has the burden of proving that he is entitled thereto.As said in Judson Freight Forwarding Co. v. Commonwealth of Massachusetts, 242 Mass. 47, 136 N.E. 375, 379, 27 A.L.R. 1131 at page 1137: 'The burden of proof is upon the petitioner to make out its right as matter of law to abatement of the tax.No intendment as to evidence can be made in its favor beyond what is shown in the record.'(Emphasis ours.)

As said in Barnes v. Jones, 139 Miss. 675, 103 So. 773, 776, 43 A.L.R. 673, 678:

'An exemption from taxation will never be presumed, and the burden is on the claimant to establish clearly his right to an exemption.In the case of Morris Ice Co. v. Adams, 75 Miss. 410, 22 So. 944, the court said that:

"The rule is universal that he who claims exemption must show, affirmatively, an exemption expressly declared and that the claimant is clearly embraced within the terms of the exemption."

This same principle is declared in 20 Am.Jur. 148, § 142, where it is stated: 'The burden rests upon the party who, as the basis of his claim or defense, asserts that he is within an exception or exemption in a contractual stipulation or a statute to prove all the facts necessary to bring himself within such exception or exemption.'The footnote to this section is replete with citations in which this doctrine has been declared by the courts in cases relating to taxation.See alsoJones on Evidence, Vol. 1, § 180, Page 328, Note 12;61 C.J. 411-412, §§ 429-430 and cases cited.

In this case the burden was upon the plaintiff to prove that he was entitled to the exemption claimed.Unless he was a legal resident of the State of Maine when the several taxes were assessed he was not entitled to the exemption.The burden was upon him to prove that he was a legal resident of the State of Maine at the date as of which each of the taxes in question were assessed.There was no evidence of his residence.He therefore failed to maintain the burden of proof which was upon him to show that he was entitled to the exemption.This defect in proof was sufficiently and specifically challenged by the defendant's 4th obection.This objection to the acceptance of the referee's report should have been sustained.To overrule it constituted legal error.We must sustain the exceptions on this ground.

The effect of sustaining the exceptions to the acceptance of a referee's report because of the erroneous overruling of the defendant's objection thereto is to vacate the acceptance of the report.However, as we said in Courtenay v. Gagne, 141 Me. 302, 305, 43 A.2d 817, 818: 'The authority of this Court only goes to remanding the case to the Superior Court, where, in the discretion of the presiding Justice, the reference may be stricken off and the case heard by a jury, or there might be a recommittal to the same referees, or with the consent of the parties, a reference to new referees.Chaput Pro Ami v. Lussier, 131 Me. 145, 159 A. 851.'

Although the erroneous action by the Justice below in overruling the 4th objection necessitates vacating the acceptance of the referee's report, the exceptions so far as they are based upon the overruling of the other objections are also before this Court for decision.As the questions involved therein may again arise, and because a settlement of them now may possibly obviate further litigation, we will proceed to consider the same.

ObjectionNo. 1, that there is no evidence that an assessment of the taxes in question was inadvertent was properly overruled.If the property was exempt it is immaterial to the determination of the issues in this case whether the assessment of the taxes thereon was intentional or through inadvertence.

ObjectionNo. 2, that there is no evidence in the record to support the finding of the referee that the assessment of the taxes in question was illegal, should have been sustained.The word illegal as here used means unauthorized by law.If the property was exempt, its assessment was unauthorized by law.We sustain the exception to the overruling of this objection upon the ground that there was no evidence in the record that the plaintiff was a legal resident of the State of Maine, and therefore, no evidence that the property was exempt from taxation.By sustaining the exception on this ground we do not even intimate that the record contained sufficient evidence of the other facts necessary to the plaintiff's right to the exemption which he claims.

ObjectionsNo. 3andNo. 7 being in effect upon the same grounds will be considered together.They are as follows:

'3.The evidence shows conclusively that the real estate of the Plaintiff's ward was assessed by the Assessors for the years 1946-1947-1948-1949 and that the tax so assessed was voluntarily paid.'

'7.The finding is against the law and the evidence in that the law is that a taxpayer who voluntarily pays real estate taxes duly assessed cannot recover said taxes from the city.'

To sustain these exceptions the defendant relies upon the law as stated in Smith v. Inhabitants of Readfield, 27 Me. 145, which was an action brought against a town to recover taxes paid.In that casethe court said: 'When money claimed as rightfully due is paid voluntarily, and with a full knowledge of the facts, it cannot be recovered back, if the party, to whom it has been paid, may conscientiously retain it.'

It is claimed by the defendant that the plaintiff's guardian, with full knowledge that the plaintiff's property was exempt from taxation, and after having been informed thereof, and that it would be exempted by the assessors, voluntarily and without protest paid the taxes assessed for the years 1946, 1947, 1948 and 1949.Even if the evidence conclusively shows these facts to be true, such payment by the guardian does not constitute a defense to this action.Although the taxpayer brings this action by his guardian, it is the taxpayer, the ward, who is the plaintiff, not the guardian.The guardian is not a party to the suit.As said by us in Inhabitants of Raymond v. Sawyer, 37 Me. 406: 'In the prosecution and defence of suits, the guardian who appears for his ward, does not become a party to the proceedings'.To the same effect, seeSanford v. Phillips, 68 Me. 431.

Even if the guardian has paid the several taxes with full knowledge on his part that the plaintiff's property on which they were assessed was exempt from taxation, such action on his part cannot prejudice the rights of his ward.As said in 39 C.J.S., Guardian and Ward, § 99, par. a, p. 174: 'A guardian by his conduct, default, or silence cannot bar the ward of his rights; a ward is not estopped to assert any rights to property by reason of any negligence on the part of his guardian'.As said in 25 Am.Jur. 66, § 101: 'It is the prevailing view that a guardian may not waive legal rights in behalf of his ward, or surrender or impair rights vested in the ward, or impose any legal burden thereon.Nor, according to the generally accepted view, can the ward or his estate be estopped, or held to have ratified an illegal transaction, by reason of the guardian's act.'

While it is the duty of the guardian to pay taxes legally assessed upon his ward's property to save it from forfeiture, it is likewise his duty to resist, in behalf of his ward, the collection of taxes which are not legally assessed. ...