Colby v. Russell , 3 Me. 227 ( 1824 )

Mellen, C. J.

at another day in the same term, delivered the opinion of the Court as follows.

The language of the statute upon which the present question is raised, seems very plain and intelligible. The assessment is to be under the hands of the assessors, — and the warrant under their hands and seals. This certainly requires that each should bear on its face the evidence of its official sanction, — each being an independent act. The assessment must be recorded. The warrant need not be. This also shews that the assessment must of itself, and without aid from any other document, be a complete act of the assessors. Would the act be complied with, or any of the contemplated advantages of a recorded assessment be realized, by recording one not'signed by the assessors, nor bearing anyone stamp of authority, but being a mere unfinished proceeding? Reason and good sense oppose the idea, as clearly as the language of the section in question.

It has been urged also that the circumstance of the assessment and the warrant being both in the same paper book, and the reference in the warrant to the assessment, will render it valid. An answer to this argument is, that the warrant does not refer to the assessment as annexed to it, but as herewith delivered. There is therefore no certainty that it referred to the one before us. Another objection to the defendant’s argument, and which seems to be satisfactory, is this ; — the assessors are not authorized to make out a warrant to collect a tax, till it has been legally assessed. The act requires the assessors to make the assessment under their hands, and to commit the same to the collector, with a warrant. The acts to be performed are successive and distinct; and both must, of themselves, be complete. The case of a submission of demands before a Justice of the Peace, pursuant to the Stat. 1821, ch. 77, is somewhat analogous to the case before us. By that statute the person claiming damages must make out his demand, in the form of a particular statement against the alleged debtor or delinquent, and sign the same ; and then lodge it with a Justice of the Peace, who is to make out an agreement of submission to the referees agreed on by the parties, which agreement is also to be signed by them, and acknowledged before the Justice. Here, both the demand and the agreement must be signed. Many reports of referees hare been rejected, and judgments upon reports reversed on error, because the demand was not signed, as well as the agreement of submission. The latter signing has never been considered as virtually applying to and sanctioning the former. We are all of opinion that the assessment is imperfect and invalid.

Judgment on the verdict.