Abbott v. Inhabitants of Bangor , 56 Me. 310 ( 1868 )

Barrows, J.

The position taken in defence of this action, that the plaintiff paid these taxes voluntarily, and is thereby precluded from maintaining a suit to recover the same, cannot be deemed tenable upon the facts presented by the agreed statement. See, on this point, Preston v. Boston, 12 Pick., 7, the doctrine of which is recognized as sound by Siiepley, J., in Smith v. Readfield, 27 Maine, 145.

Nor does it appear that the tax of 1866 can be defended as legally assessed under c. 193 of the laws of 1863, which authorizes the assessment, in the place where the bank is located or transacts its business, of stock "held by persons out of the State or unknown, and that has not been certified according to the provisions of c. 46, § 21, of the E. S., in any city or town in this State, and is not there assessed,” or stock " appearing by the books of such bank to be held by persons residing beyond the limits of this State or unknown.”

It is a sufficient reply to this defence that there is nothing in the agreed statement, from which it can be inferred that the plaintiff’s stock came within the provisions of this Act. On the contrary, it does appear that the plaintiff had for many years resided in Castine, in the vicinity of Bangor, and was the owner of a considerable number of shares in the bank. The presumptions hence arising tend to show that the stock could not have been rightfully taxed under the Act of 1863. If the defendants designed to raise that question, it was incumbent on them to rebut these presumptions and make it appear that the plaintiff was out of the State or unknown, and that the stock had not been certified to or assessed in some place in this State, or that the stock appeared by the books of the bank to be held by some one residing beyond the limits of this State or unknown. The plaintiff is manifestly entitled to recover the amount paid to prevent the seizure of his stock for the tax of 1866, with interest from the time of the payment. Abbott v. Bangor, 54 Maine, 540.

With regard to the tax of 1867, it is not perceived that the plaintiff’s claim stands on any materially different footing from that which was attempted to be maintained in Packard v. Lewiston, 55 Maine, 456, in which the Court rendered judgment for the defendants.

We see no occasion to change any of the views expressed in the opinion delivered in that case. There is no necessity for reiterating them. We simply refer to, adopt, and confirm them.

The plaintiff seeks to distinguish this case from Packard v. Lewiston on two grounds: —1. Because the Congress of the United States, since that decision was made, and subsequently to all the transactions involved in the present suit, on the 10th of February, 1868, legislated as follows: — "that the words 'place where the bank is'located and not elsewhere,’ in section 41 of the Act to provide a natioual currency, approved June 3, 1864, shall be construed and held to mean the State within which the bank is located, and the Legislature of eaeh State may determine and direct the manner and place of taxing .all the shares of national banks located within .said State, subject to the restriction that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of said State ; and, provided always, that the shares of any national bank, owned by non-residents of any State, shall be taxed at the city or town where said bank is located and not elsewhere.”

This Act of Congress can have no effect upon the result in. this case. It was not necessary in order to enable the .assessors of Bangor to lay the tax in 1867. ■ That was authorized by previous legislation, both of Congress and the State Legislature. It is the office of the legislative department to enact laws, not to interpret them. It belongs to the judiciary to construe the laws which are enacted.

The Act of Congress of Feb. 10, 1868, operated a change in § 41 of the " Act to provide a national currency,” as previously construed by this Court, and thenceforward authorized a mode of taxation more in consonance with our custom.; but it had no retroactive effect upon any proceedings previously had under our statute of 1867, nor does it affect, in any manner, the conclusion we reached in the case of Packard v. Lewiston, as to the validity or invalidity of the several sections of c. 126 of the laws of 1867. We recognize and gladly conform to the change made by the Act of Feb. 10, 1868, in § 41 of the Act of June 3, 1864, but it cannot chango our view of the true construction of § 41 as it originally stood, — a law for all cases arising under it prior to the Act of Feb. 10, 1868.

2. Tho second ground upon which the plaintiff claims that this case is distinguishable from Packard v. Lewiston is, that c. 126 of the laws of 1867, under which the tax in this, as well as in the Lewiston case, was assessed and collected, has now been repealed. He insists that his case is to be considered as so far a case pending that the repeal will enable him to maintain his whole claim in this suit.

We cannot adopt this view. The case finds a tax for the year 1867 legally assessed and rightfully collected, under the existing laws, paid under protest it is true, but paid. The right of the party making the payment to recover it back, must be tested by an examination of the laws then in force. The repeal of the statute which authorized the tax cannot confer upon him a right to recover that which he could not have recovered the day after he made his payment. Judgment for plaintiff for amount of tax of 1866, with interest from date of payment.

Appleton, C. J., Kent, Walton and Danporth, JJ., concurred.