Vigue v. Chapman

• Decision Date: 22 December 1941
• Citation: 24 A.2d 241
• Parties: VIGUE v. CHAPMAN et al.
• Court: Maine Supreme Court

24 A.2d 241

VIGUE

v. CHAPMAN et al.

Supreme Judicial Court of Maine.

Dec. 22, 1941.

On Report from Superior Court, Somerset County.

Writ of entry proceeding by Arthur W. Vigue against Ward B. Chapman and another, to recover land, submitted on report to the Supreme Judicial Court.

Judgment for plaintiff.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, MURCHIE, JJ.

Harvey D. Eaton, of Waterville, for plaintiff.

Harvey H. Brazzell, of Fairfield, for defendants.

MURCHIE, Justice.

By writ of entry, the plaintiff here seeks to recover a parcel of land claimed by the defendants under conveyance from the inhabitants of the town in which the property is situate, executed on the basis of a title alleged to have been acquired under the operation of the Tax Lien Law, so-called, P.L.1933, C. 244, as amended. The tax which laid the foundation for the lien was assessed against the plaintiff as a non-resident owner of the property in 1937. A lien certificate in appropriate form was filed in the proper registry office April 4, 1938, and the record discloses that officers of the town took possession of the property October 4, 1939, and made conveyance to the defendants by deed dated March 2, 1940, which was recorded 5 days thereafter.

Plaintiff's claim of title is supported on the dual ground that the town officials did not comply strictly with all the requirements of law necessary to enforce a forfeiture for non-payment of taxes and that the statute in its application to the particular tax lien is unconstitutional because differences in statutory requirements applicable to resident proprietors, on the one hand, and to non-resident proprietors, on the other, represent a denial to the plaintiff, as a non-resident, of that equal process guaranteed by Article XIV of the Amendments to the Constitution of the United States wherein it is stated, Sec. 1, that no state "shall * * * deny to any person within its jurisdiction the equal protection of the laws". While it is not material to the present cause, where the rights of the parties must depend on the efficacy of a tax lien certificate filed in 1938, it may be noted that the differences in process applicable, as the law was originally written, to resident and to nonresident owners was eliminated by P.L. 1939, C. 85.

In Inhabitants of Town of Warren v. Norwood, 138 Me. —, 24 A.2d 229, recently decided in this court, the question of the constitutionality of the law here challenged, in so far as it applies to resident taxpayers, was considered and determined affirmatively. The instant case raises a constitutional issue which was not there determined, but the rule there recognized, that "long and thoroughly established practice dictates that no question of constitutionality shall be passed upon except when entirely necessary to a decision of the cause in which it is raised", seems to preclude a present consideration of the equal process issue, since the proceedings taken to effect the forfeiture so clearly fell short of that "strict compliance with statutory requirements" which is necessary "to divest property owners of their titles for non-payment of taxes". Porter v. Whitney, 1 Me. 306; Brown v. Veazie, 25 Me. 359; Hobbs v. Clements, 32 Me. 67; Bowler v. Brown, 84 Me. 376, 24 A. 879; Baker v. Webber et al., 102 Me. 414, 67 A. 144; Inhabitants of Town of Warren v. Norwood, supra.

The record discloses that plaintiff acquired title to the locus in November, 1924, and, so far as any testimony in the cause appears, he is still the owner of it, unless the proceedings of the town intended to work a forfeiture were effective. The testimony shows that the taxes assessed against the property for the years 1936, 1937, 1938 and 1939 have not been paid, and that the enforcement proceedings related to a tax in the amount of $10.60 assessed in the year 1937. The lien certificate recites that the tax was committed for collection on June 12, 1937, which date, assuming a valid assessment and such commitment, was within the statutory time limit for such recording.

As was stated in Inhabitants of Town of Warren v. Norwood, supra, the first question for consideration in any case involving a tax forfeiture is the assessment of the tax itself, since it is only by proper assessment that a lien can be created under the provisions of R.S.(1930), C. 13, Sec. 3, and unless a tax is properly assessed, it cannot create a lien available for enforcement by any form of process. Greene v. Lunt, 58 Me. 518; Burgess v. Robinson, 95 Me. 120, 49 A. 606.

The first requirement of a valid tax is the due election and qualification of those who assess it. In Inhabitants of Town of Warren v. Norwood, supra, the court held that when a party contesting the validity of tax proceedings challenges the election and qualification of designated officials, examines the municipal records, selects excerpts dealing with the matters in dispute to be read into the testimony, and states that he raises no issue "as to other matters", it may be assumed that all action at the meeting, other than that covered by the excerpts so selected and made a part of the testimony, was properly taken under the warrant by which the meeting was convened. The principle thus enunciated represents little extension, if any, of the rule of liberal construction which has always been applied to town meeting records. Almost of necessity town meeting action is recorded occasionally by those having little of experience either in law or in the interpretation of statutes, and it would be unwise to require a too meticulous care with reference to detail. In each of several decided cases heretofore, a record presented in court showing entry that a named officer was "elected," "chosen" or "chosen by ballot" was held sufficient notwithstanding failure to recite that the election or choice was "by ballot" or that the officer elected by ballot was named "by major vote". In each case the principle was applied that the record of an election, if not impeached, imports a legal choice. Mussey v. White et al., 3 Me. 290; Blanchard v. Dow, 32 Me. 557; Hathaway v. Inhabitants of Addison, 48 Me. 440; Gerry v. Herrick, 87 Me. 219, 32 A. 882; Inhabitants of Wellington v. Inhabitants of Corinna, 104 Me. 252, 71 A. 889.

The transcript now under consideration contains no excerpt from the municipal records showing either the election or the manner thereof, but counsel for ...