Alvord v. Collin

Morton J. delivered the opinion of the Court. The demandant, to prove his title, introduced a deed from C. Alvord, to himself, and the levy of an execution in favor of the former against Goodwin and others. These, undoubtedly, are sufficient evidence of his seisin to enable him to maintain this action. The levy, prima facie at least, vested a seisin in C. Alvord, which, by his deed, passed to the demandant. But it is unnecessary to investigate his claim, for the tenants derive their title from him. They claim the demanded premises by virtue of a sale, for the payment of taxes assessed upon the same. If this sale prove to be valid, it must prevail against the demand-ant, because by it all his estate passed to the purchaser, from whom the tenants derive a regular title. — 421 — The lands in question were sold for the payment of the State, county, town and ministerial taxes for the year 1819. The tenants, to establish their title, must show that all the taxes were legally assessed, and that the land was sold for the payment thereof according to law. As their claim is under a statute conveyance, they must show a strict compliance with all the requisitions of the statute. If either of the taxes was invalid, or the proceedings of the collector illegal, the sale must be inoperative and the tenants’ title fatally defective. Stetson v. Kempton, 13 Mass. R. 272 ; Libby v. Burnham, 15 Mass. R. 146 ; Elwell v. Shaw, 1 Greenl. 339. In an ex parte proceeding which is to divest an individual of his estate without his consent and perhaps without his knowledge, great strictness is required. No presumption is to be made in favor of such a sale when not aided by its antiquity, and the burden of proof is strictly upon those who claim under it, to make out its regularity in every respect. Ronkendorff v. Taylor’s Lessee, 4 Peters’s Supreme Court R. 359. The subject naturally divides itself into three branches of inquiry : Were the assessors duly authorized to make the assessments ? Did they proceed lawfully in making them ? And was the sale made conformably to law ? 1. There seems to be no doubt of the legality of the election and qualification of the assessors. The legislature, the only power competent to such an act, made a regular grant of a State tax for the year 1819, and duly made an apportionment of it among the several towns in the Commonwealth. Of this the evidence is unexceptionable. This authorized the assessors of Washington to assess' the amount imposed upon that town. This authority did not depend upon the treasurer’s warrant; and cannot be defeated or annulled by any act or omission of any ministerial or other officer of the government. An assessment in pursuance of the grant and apportionment of a State tax would be valid, although made by the assessors, without any warrant from the treasurer. Such warrant may be competent authority for the assessors to act upon, but is not the only nor the highest evidence of the grant. The treasurer’s authority to issue this precept depends upon the grant of the legislature, and the war — 422 — rant is obligatory, only so far as it is in pursuance of the legislative act. The treasurer’s warrant is a mandate to the assessors, binding upon them, for the disobe lienee to which they are subjected to the penalty prescribed by statute 1785, c. 50, § 4. Although they could not be compelled to act without this mandate, yet if they chose to act without it and did act in conformity with the statute, they would be justified and all others would be bound by their pruceedings. The omission therefore to produce the treasurer’s warrant is not a fatal objection to the assessment of the State tax. But, were it otherwise, and did the authority of the assessors depend upon proof of the treasurer’s warrant, we are of opinion, that the levy and collection of the tax and the other circumstances proved in the case, would justify a jury in presuming that a warrant was duly issued and transmitted to the assessors. This precept is not returnable to the office whence it issued, but remains among the archives of the town. And we may here remark, that the testimony of the town clerk fairly opens the door for the introduction of secondary evidence in relation to this and all the other documents controverted in the case. The county tax was granted by the legislature, and duly apportioned among the several towns within the county by a court of competent jurisdiction. This, for the reasons above given, vested adequate authority in the assessors, and the assessment was made in pursuance of the grant and in exact conformity to the apportionment. Although no warrant from the county treasurer can be found, yet the certificate of the clerk of the courts made at the time, that such warrant did issue, and the original return of the assessors that they had assessed the county tax in pursuance of a warrant from the county treasurer, raise an irresistible presumption, that a proper warrant did issue and was duly transmitted to the assessors. It appears from the records of the town, that at a meeting duly warned, and holden April 5, 1819, it was “ voted to raise the sum of $300 for the benefit of schooling the present ijearfi — “ the sum of $100 for contingent expenses,” — and “ Iht — 423 — sum 'of $200 for the benefit of the gospel.” The two former giants were for municipal purposes, constituted a proper town charge, and should have been included in the same tax, appropriately called a town tax. To this, by St. 1785, c. 50, § 14, might and should have been added the county tax, making but one assessment for the whole. In making the last grant, which was for parochial purposes, the town acted as a parish.. And as some individuals might be exempted from parochial charges, who were liable to contribute towards town charges, it might be necessary to make a separate assessment of the sum granted “ for the benefit of the gospel.” To this latter grant there seems to be no objection. And we are of opinion, that the assessors had sufficient authority to assess all the" taxes in question. 2. Did the assessors proceed according to law, in the ex ecution of this authority ? The original tax bills are before us ; a copy of the assessments has been produced from the town clerk’s office; and there is no reason for questioning the testimony of one of the assessors, that a valuation was duly made and filed in the proper office. ■ The only question in this branch of our inquiry, which has given us any trouble, relates to the amount which appears to be assessed for the support of schools. By St. 1785, c. 50, § 11, assessors are “ authorized and empowered to apportion on the polls' and estates, according to law, such additional sum over and above the precise sum to them committed to assess, as any fractional divisions of such precise sum may render convenient in the apportionment thereof ; not exceeding five per centum on the sum taxed.” This "s a pretty important regulation for the government of assessors in the performance of their official duties. It has been revised and reenacted in substance, though in different language, in the Revised Statutes, c. 7, § 28. The practice of overlaying prevailed and was general, long before the above statute was enacted. It is not only convenient but indispensable, to avoid impracticable fractional divisions, and to guard against deficiencies. It was formerly deemed so essential to the due exercise of the power of assessing taxes, that it was — 424 — thought by many to be incidental to that power. See Colmn v. Anderson, 10 Mass. R. 105. We now have no occasion to consider this point ; because the power has been expressly granted by the statute cited. And we cannot say that assessors may, in any degree, exceed or violate these explicit and positive directions and limitations, without such an abuse of authority as will avoid their acts. These officers derive their power wholly from statute and it is defined and regulated by the same. Any excess of such power is unjustifiable. If they may, in their discretion, assume power in a small matter, how far may they go ? If they may exceed these limits in a small sum, why not in a larger one, and where shall be the boundaries of their authority ? Surely it cannot be made to depend upon their own discretion. We are aware that the Court in Colman v. Anderson, 10 Mass. R. 105, advanced a different doctrine. If it be necessary to distinguish the case at bar from that, we may refer to the statute giving and limiting the power, as forming a manifest distinction. At any rate we cannot doubt, if the assessors exceed the Jive per cent to which they are restricted by statute, the whole tax will be void. If any authority be needed to support this position, Libby v. Burnham, 15 Mass. R. 144, is directly in point. See also Elwell v. Shaw, 1 Greenl. 339, and Huse v. Merriam, 2 Greenl. 375. This brings us to the inquiry whether the assessors did in any of those taxes, assess a larger sum than they were authorized to assess. The State tax may now be united in the same assessment with the town and county tax. Revised Stat. c. 7, § 25. But it was otherwise when the taxes in question were made. The State tax was accordingly assessed separately. But there appears to be no excess in the assessment. It is also very apparent that there was no excess in the ministerial tax. The county tax then, as now, might be united with the town tax. St. 1785, c. 50, § 14. It was accordingly so done. The county tax was $106-19 ; the grant for contingent expenses was $100, and for the support of schools $300 ; making m the whole $506-19. Five per cent upon this sum would be — 425 — $25-31. This would authorize the assessment of the gross sum of $531-50. The amount of the taxes actually assessed was $529-82, being less by $1 68 than the assessors were authorized to assess. In this view of the case, there seems to be no excess of authority on the part of the assessors. But in looking into the papers we find that the assessors made four different lists of the taxes. One, of the State tax ; another of the ministerial tax ; another of the school tax ; and a fourth of the town and county tax. The first two were necessarily and properly made- separately. But there could have been no reason for making separate lists of the other three. The grams for the support of schools and for contingent expenses, were made at the same time, and the one was as truly a town charge as the other. It was neither convenient nor proper to separate them. It would be just as reasonable to make a separate list for every different sum granted by a town. In fact, these two sums, with the county tax, if the assessors chose to add it, constituted “ the precise sum committed to them to assess.” And in assessing this sum the-assessors exceeded it less than five per cent. There is no complaint that it was not fairly and justly apportioned. Can it make any difference whether this was divided into several lists or all included in one ? It appears that in one of the lists of taxes, which is called the “ school tax,” there is included $315-18. If this was intended as an assessment of the sum granted for the support of schools, it exceeds the amount by $15-18 and the addition of Jive per cent by eighteen cents. Had this been the whole sum then to be raised by taxation, the assessment would have been void. But if the three sums which the assessors were required to assess at the same time had (as they ought) been included in one tax, or if these several lists are to be deemed but one assessment, then the overlay will clearly fall within the five per cent upon the sum to be raised. Now the result is exactly the same, whether the whole be included in one list or divided into several separate lists. Each individual has precisely the same amount to pay, is holden to pay it at the same time and subject to the same remedies and processes. Although several formal assessments were made, yet in the bills committed to the collector, the sev — 426 — eral sums are only separated by lines drawn between the different columns and are all added together in the last column. It cannot therefore be properly said that these were separate assessments. But whether they are to be deemed separate assessments or but one, is immaterial. A sum was committed to the assessors to assess. They were authorized “ to apportion on the polls and estate, liable to be taxed, an additional sum, not exceeding five per cent.” The assessors conformed to this direction. And whether they "divided the precise sum committed to them into a number of lists or assessments, or included it all in one, it was clearly within their authority, and in this respect legal and valid. The objection to the form of the assessment cannot prevail. The tax is set in the lists against the name of Caleb Alvord ; who, at the time, was not the owner. It is supposed by the demandant, that if this is a valid tax, it is against C. Alvord and not himself; at any rate, that it cannot be a tax which he is liable to pay. Were this a tax on personal property or on improved real estate, the objection might have force. But this was “ on the unimproved land of a non-resident.” In such case the tax is upon the land itself; constitutes a lien upon the land, and is not a personal charge against the owner. If the owner be known, he should be named ; if not, a description of the land is sufficient. Here the land was sufficiently described. The quantity of the land and the number of the division and lot, were correctly stated. And if, instead of the name of Caleb Alvord, the assessors had inserted “ the name of owners unknown,” or “ lately of C. Alvord,” the assessment would unquestionably have been good. Will a mistake of the name, when none need be given, render the tax void ? We think not. It misleads nobody. It injures nobody. It is a mistake which assessors are extremely liable to fall into, and one which cannot always be avoided. They cannot be required to keep themselves informed of all transfers of unimproved land within their respective towns. These may be made accidentally or designedly just before the taxes are levied. In this case the conveyance was recorded only a few weeks before the tax might have been made. The case of The City of Washington v. Pratt, 8 Wheat. 682, has an apparent resemblance to the — 427 — case at bar, but is clearly distinguishable from it. They depend on the construction of statutes entirely dissimilar ; the one, upon our own statute, which does not require non-resident owners of unimproved lands to be named, the other, upon a statute of the United States, expressly requiring that the land should be assessed to the actual owner. We have been brought to the conclusion, that the taxes were duly authorized and legally made. It only remains to inquire whether the collector proceeded according to law, in the sale of the land. In considering this question, we are met, in limine, by an objection to the appointment of the collector. And it certainly is one worthy of deliberate consideration. There is no doubt that the collector was an officer de facto. And the general principle is well established, that, so far as the rights of third persons, or of the public, are concerned, his acts are valid. His right to hold the office can be inquired into only in a proceeding to which he is a party. Fowler v. Bebee, 9 Mass. R. 231 ; Nason v. Dillingham, 15 Mass. R. 170; Bucknam v. Ruggles, 15 Mass. R. 180; The People v. Collins, 7 Johns. R. 549 ; M'lnstry v. Tanner, 9 Johns. R. 135; Jones v. Gibson, 1 N. Hampsh. R. 266 ; Moore v. Graves, 3 N. Hampsh. R. 408 ; Tucker v. Aiken et al., 7 N. Hampsh. R. 113. But it has been supposed that a different rule applies to the sale of land, for the payment of taxes, and that to maintain a title thus acquired it was necessary to prove the legal election and qualification of all the officers employed in the assessment and collection of the tax. Colman v. Anderson, 10 Mass. R. 113 ; Welles v. Battelle, 11 Mass. R. 480 ; Pejepscut Proprietors v. Ransom, 14 Mass. R. 145 ; Bucknam v. Ruggles, 15 Mass. R. 181 ; Hale v. Cushing, 2 Greenl. 218. It appears from the records of the town, that A. Deming was chosen constable and collector. The mode of appointing the collector is then explained, viz. “ by bidding off said office at vendue,” by which “ he was to collect the taxes of said town for five per cent.” This mode of procuring taxes to be collected, is one which has frequently been practised in different parts of the Commonwealth for a long time. To hold all elections — 428 — thus made to be illegal and the acts of officers thus chosen tc be void, would be productive of extensive mischief. They should therefore be sustained, if it can be done without a violation of principle. We fully recognise the validity of the objection to the sale of offices, whether viewed in a moral, political or legal aspect. It is inconsistent with sound policy. It tends to corruption. 11 diverts the attention of the electors from the personal merits of the candidates, to the price to be paid for the office. Ii leads to the election of incompetent and unworthy officers, and on their part, to extortion and fraudulent practices to procure a remuneration for the price paid. Bac. Abr. Offices, F; Com. Dig. Officer, K; Stockwith v. North, Moore, 781 ; 1 Hawk. P. C. c. 67, § 3 ; Blackford v. Preston, 8 T. R. 89. Nor can we discover a difference, in principle, between the sale of an office for a valuable consideration, and the disposing of it to the person who will perform its duties for the lowest compensation. In our opinion, the same objection lies against both. But we doubt whether the principle applies to the appointment of collectors. In England, it seems to be confined to offices which relate to the public revenue or “ concern the administration of justice.” Bac. Abr. Offices, F; Com. Dig. Officer, K; Godbolfs Case, 4 Leon. 33 ; Blackford v. Preston, .8 T. R. 92 ; Waldo v. Martin, 2 Carr. & Payne, 7. A collector has a single duty to perform, viz. to collect the taxes committed to him. And although, for this purpose, he is intrusted with high powers, yet they are confined exclusively to this object. The same- objection would lie to this mode of employing the overseer of the almshouse, mechanics or other laborers, or giving any contract to the lowest bidder. The employment of a collector cannot be deemed a public office. It is a service which the town may procure to be performed in some measure as it makes other contracts. No one is bound to accept it. The compensation must be the inducement to undertake it. This the town has a right to fix. And this may be one mode, and, perhaps, net the most objectionab'e one, of doing it. There may be, and generally are. m every town, a number of persons equally capable of performing this service. What valid objection can exist to granting — 429 — it to the one, of these, who will perform it for the lowest compensation ? There will be very little danger that the town will select an unfit or incompetent person. The corporation, to ensure the faithful and punctual collection of the taxes, and all the members of it, to protect themselves from vexation and oppression, are alike interested to select a competent, discreet, and faithful servant. He can exercise power upon nobody hut themselves. Had the terms of the vendue been such, that the lowest bidder should, at all events, have the appointment, without regard to his fitness or qualifications, it would have been difficult to have sustained the election. But it does not appear that such was the case, and we cannot presume that it was. We must suppose that the auction proceeded on the terms, that the lowest bidder should be appointed, provided that he was a suitable person to perform the .duty. We are.aware that the judiciary of a neighbouring States the laws and institutions of which are very similar to our own, and whose decisions are entitled to high respect, has taken a different view of this subject. In the case of the town of Meredith v. Ladd, 2 N. Hampsh. R. 517, it was holden, that the sale of a public elective office was contrary to sound policy ; “that the office of constable was a public elective office ” ; and that a note given for the price of such office was void. In Carleton v. Whitaker, 5 N. Hampsh. R. 196, itwas decided, that the office of deputy sheriff cannot be the subject of a sale, and that a contract for such sale is illegal. Neither of these decisions impugns the doctrine adopted by us. For although the same person was elected both constable and collector, yet it does not appear that the elections to the two offices were connected or in any degree depended upon each other. And while we intend to give no opinion upon the propriety of electing constables in this manner, we expressly found our decision on the manifest distinction between the powers and duties of the two offices. In the case of The Proprietors of Cardigan v. Page, 6 N. Hampsh. R. 182, a question relative to a similar appointment of a collector came before that court. The late chief justice, in giving the judgment of the court, says, “ that the practice — 430 — of setting up at auction the office of collector of taxes, and of choosing him who will serve most cheaply, is incorrect. A proper choice should be made by the town, and the compensation be left to be settled by the selectmen. No person can be compelled to serve as collector. But suitable persons may be found, who will be willing to serve for a reasonable compensation. What effect the circumstance, that the office was set up at auction, ought to have upon the appointment, we shall not examine.” The court then decide the case upon other points, leaving the validity of the election unsettled ; and clearly implying that they did not consider that this question had before been determined by them. But in Tucker v. Aiken et al. 7 N. Hampsh. R. 113, which occurred soon after,, the court seem to assume that it had been adjudicated and was well settled, that such an election of collector was illegal. But they proceed to sustain his doings, upon the ground that he was collector de facto, and .that third persons were justified by his acts, as such.' There were circumstances on the record, strongly indicating that this was an absolute, unconditional auction, and that the town, for this cause, elected a person known not to be so well qualified as some others. It is not to be disguised, that both the late and the present chief justices, express strong opinions against the legality of the election. But it was not the point adjudged. And their decision would have been the' same, had they held the election to be legal. Whatever respect, therefore, we may entertain for the opinions of these learned judges, it is manifest, that we have not to encounter any direct adjudication. Upon the most careful examination we cannot discover that any practical evil or inconvenience has resulted from this long practised mode of appointing collectors. And we do not think that the salutary principle referred to, has such an application to it as to call upon us to interfere by pronouncing all appointments made in conformity to it, illegal and void. The evidence of the publication of the notice of the sale, and of the posting up copies of it in Washington and three adjoining towns, with the aid to be derived from the lapse of time, is unquestionably sufficient to justify a jury in finding the facts. The only point, of any doubt, relates to the testimony — 431 — jf Merrill. He does not now recollect seeing the notice. But he verifies his certificate of the fact, made near the time. This may not be in exact conformity with the rule, that a witness shall testify only from his present recollection. But how much more satisfactory and certain is such a written statement, than the memory, of any witness after such a lapse of time. It is every day’s practice to prove the execution of deeds and other instruments, by subscribing witnesses, who know nothing about them except that their names were written by themselves. The notice is objected to as being of itself insufficient. There is no doubt the notice must be good of itself. It cannot be aided by explanations given at the auction or elsewhere. The object of the notice is twofold ; to inform the owner of the proposed sale, that he may save his property by paying the taxes and the costs ; and to notify all others who may desire to purchase, that a proper competition and a fair sale may be secured. The property should be so described as to enable purchasers to identify it and to judge of its value. See 4 Peters’s Sup. Court R. 362. The seventh section of Si. 1785, c. 70, regulates the sale of the unimproved lands of non-residents, for taxes. It directs the collector, when the names of the owners are known, to publish “ the names of all such proprietors,” “ with the sum of the taxes assessed on their lands respectively, and also the time and place of sale,” and when they are not known, he shall “ publish the sum of the taxes on the several rights, numbers of lots or divisions,” as well as the town in which the land is situated and the time and place of sale. In this notice .the sum of the taxes, the time and place of sale, the town in which the land lay, the number of the lot, and the quantity it contained, are clearly expressed ; so that there would be no danger that the owner or a stranger would mistake either. Had the land been owned by C. Alvord, in whose name it was taxed, it would manifestly have come within the first clause cited. But he having sold it to the demandant, before the taxes were assessed, the owner was unknown to the collector, and his advertisement contains every requisite contained in the latter clause. — 432 — The insertion of the name of C. Alvord would not dec vive any one ; not the owner, because he would know his own land from its description, and the name of his grantor would have no tendency to mislead him, nor strangers, for they would rely on the number of the lot &c. ■ to show its situation and value, and if they ever knew that C. Alvord owned it, his name, instead of misleading, would aid them in identifying the land. As the notice would have been good, without any name, we cannot perceive that the insertion of the name of the former owner can vitiate it. Having examined all the objections to the tenants’ title which are raised upon the report or have occurred to us, we are of opinion that they are not well founded. The demandant must therefore be nonsuited.