Winslow v. Morrill , 47 Me. 411 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

By the private Act passed March 28, 1856, c. 635, § 1, a portion of the territory of the town of Strong was set off to and made a part of New Vineyard. .

By § 2, it is provided that “ the inhabitants of the territory hereby set off shall be held to pay all the taxes which have been legally assessed upon them,” * * * * and “ their proportion of all the corporate debts and liabilities of Strong at the time this Act shall take effect,” including certain expenses of bridges and roads, and “ to be assessed according to the valuation of said town for 1855, and taxes already assessed, as well as those hereafter to be assessed, upon said inhabitanta so set off, may be collected in the same way and manner, and by the same persons, as if this Act had not been passed.”

By the Act of annexation, the plaintiff, who resided upon the territory thus set off, became an inhabitant of New Vineyard.

The assessors of one town have no right to assess the inhabitants of another town for their real or personal estate situated in the place of their residence. The assessors of Strong cannot assess the inhabitants of New Vineyard. The right to assess and collect, so far as they exist, must arise from the peculiar circumstances of the case.

If the plaintiff is liable to be assessed for the liabilities of Strong, mentioned in § 2, it is only because, for certain purposes, he is still to be regarded as an inhabitant thereof.

Assuming then, that, for certain purposes, it was the intention of the Legislature, that those residing upon the territory set off were to be regarded as still remaining inhabitants of Strong, till the debts and liabilities specified in § 2 should be assessed and paid, it is apparent that the assessment, as made, and its attempted collection, are not within the authority conferred by the statute.

All assessments, as well those then existing as those thereafter to be made, are to “ be collected in the same way and manner, and by the same persons, as if this Act had not been passed.” The collection implies a precedent assessment. The collection is to be made as if no Act had been passed. But if the Act had not been passed, it would not have been competent for the assessors to make an assessment upon a portion of the inhabitants, leaving the residue not assessed. If a tax for general objects is to be assessed, the assessment must be upon all, not upon different portions of the inhabitants, and payable at different times. The assessment should have been made without regard to the separation and consequent annexation. Instead of doing this, the assessment seems to have been upon the inhabitants of the territory set off, and not upon all the inhabitants of Strong.

If it be competent for the Legislature to confer the authority given, and it seems to have been done in repeated instances, it is very clear that it has not been pursued. The assessment, in its terms, was fractional. But if this can be done, one portion of the inhabitants may be compelled to pay sooner than the residue. Those set off were entitled to be included in an assessment, in the same manner as the other inhabitants. This has not been done. The defendants fail, therefore, in their justification. Defendants defaulted.

Tenney, C. J'., and Rice, Goodenow, Davis, and Kent, JJ., concurred.