Baltimore & Ohio Southwestern Railway Co. v. People ex rel. Wall

Mr. Chief Justice Wilkin delivered the opinion of the court: It is admitted by both parties that by the introduction of the foregoing certificates of the town clerks a prima facie case as to the legality of the tax was made. Appellant insists, however, that those certificates are not conclusive upon the tax-payer, but it may show by the record of the proceedings of the town meeting that no such town tax was in fact levied by it. This position appellee controverts, claiming that the town clerks’ certificates are final and conclusive. The levy of a town tax, as is admitted, can only be made by a vote of the electors at a town meeting. Section 2, chapter 139, (2 Starr & Curtis, 2419,) provides: “The town clerk, if there be one and he is present, shall act as clerk of the meeting, and shall keep faithful minutes of the proceedings, in a book to be known as the town record, in which he shall enter at length every order or direction and all rules and regulations made by such meeting, which entry shall be signed by himself and the moderator of the meeting.” If there is no such clerk present, a clerk pro tern must be appointed to act in his stead. (Sec. 3.) Inasmuch as the first step in the legal levy of a town tax can only be taken at a town meeting, and a record of “every order or direction * * * made by such meeting” must be made a matter of record, we are unable to see why that record is not competent evidence on the issue presented in this case. No reason or authority is offered in support of the contrary view, and we think none can be found. But counsel for appellee seem to insist that there was no error in the exclusion of the record of the annual town meetings because no offer was made to prove that the tax in question was not ordered at some special meeting. If the offered evidence was competent it should have been admitted. Whether it proved a complete defense would have been another and different question. But counsel are in error in their contention that a town tax can be legally levied at a special town meeting without some preliminary action on that subject at the annual meeting. The powers of the electors at a special town meeting are defined by section 10, article 6, chapter 139, of the Revised Statutes. They are, first, to fill vacancies in offices, etc.; second, to raise money for highways and bridges, in cases of emergency; third, “to act upon any subject within the powers of the electors at any annual town meeting, which may have been postponed for want of time at the preceding annual town meeting, to be considered at a future meeting.” It will thus be seen that the levy of a town tax at a special meeting could only be made when that matter had been postponed from the preceding annual meeting. If, therefore, the record of the annual meeting showed that no town tax was levied, and failed to show that the subject of such tax was postponed to a special meeting, it would certainly prove, at least prima facie, that no such tax was legally levied. Reference is made in the argument to section 191 of the Revenue act, providing, in substance, that only such objections as affect the substantial justice of the tax can be availed of in a proceeding like this; but it has no application to this case. The objections filed by appellant go to show the invalidity of the tax—the illegality of the levy. We think the offered evidence was competent, and that it was reversible error in the court below to exclude it. Its judgment will accordingly be reversed, and the cause will be remanded for further proceedings consistent with this opinion. Reversed and remanded.