Sweetsir v. Chandler , 98 Me. 145 ( 1903 )

Savage, J.

Action of debt by a collector for taxes assessed by a supplemental assessment.

It appears that the town of New Gloucester at its annual meeting in March 1902 voted to raise by taxation the sum of $12,019. To this the assessors added an overlay of $503.72. The amount of the state tax was $2,808.25, and of the county tax $1,120.09. And the total sum, $16,451.06 was legally assessed to the tax payers by the duly elected and qualified assessors for the year 1902. The assessors seasonably gave notice in writing to the inhabitants of the town to make and bring in true and perfect lists of all their polls and .estates, of which they were possessed on the first day of April of that year. R. S. (1883) c. 6, § 92. Solomon H. Chandler, the defendant, a resident of the town failed to bring in any list, whereupon the assessors assessed him for 92 shares of national bank stock, which was returned to them by banks in accordance with the statute, in the sum of $8,875, and for “money at interest in excess of debts” in the sum of $321,350. The assessment of the “money at interest” was a “doom” so-called. The assessors had no knowledge of any particular items of money at interest, but the assessment represented their judgment of the amount for which the defendant was liable to be taxed, on that account. No other property was assessed. The invoice, valuation and list of assessments were signed by the assessors May 31, 1902, as of April 1, 1902. The tax thus assessed has been paid.

On May 20, 1902, the defendant was adjudged to be of unsound mind by the probate court for Cumberland County, and John "W. True was appointed his guardian. The guardian then filed an inventory in the probate court, in which were returned sundry railroad, water, municipal and other bonds, and railroad, water, and other stocks and scrip, amounting in all to $551,586, all of which it is admitted were possessed by the defendant on April 1, 1902, and were liable to taxation. Of these bonds, stock and scrip, the assessors had no knowledge, until after the original assessment was made and committed, although when they made that assessment, they undoubtedly had in inind the reputed large wealth of Mr. Chandler, which it now appears was made up of these bonds and stocks.

On December 27, 1902, in accordance with R. S. (1883), o. 6, § 35, the assessors assessed a supplemental tax to the defendant upon the specific items of bonds, stock and scrip, -which had been returned by the guardian in his inventory, certifying in the assessment and in the subsequent commitment thereof to the collector, that the property thus assessed had been omitted by mistake from the original invoice, valuation and list of assessments of May 31, 1902. The last assessment was duly committed to the plaintiff as collector. He made legal demand before suit was brought and payment was refused.

This case was heard at nisi prius by the court without a jury, with the right of exceptions. The presiding justice ruled that the assessment or “doom” of money at interest applied to the bonds assessed in the supplemental assessment, and that the supplemental tax upon these was invalid, but that the tax on the stocks and scrip was valid, and being valued and assessed separately, could be enforced, and was recoverable in this suit, and rendered judgment accordingly. Both parties excepted.

I. The plaintiff excepts to so much of the ruling as holds that “the doom of money at interest applied to the bonds and the supplemental tax upon these is invalid.” We do not understand the plaintiff to deny that in its ordinary commercial sense the. term “bond” signifies an obligation to pay money. Such a bond contains a promise to pay money, usually to bearer, and hence is negotiable and is transferable by delivery. Lane v. Embden, 72 Maine, 354. It performs the office of a promissory note. It represents, and is the evidence of, an indebtedness. Its coupons represent the instalments of interest as they become due. The person or corporation issuing the bonds is a borrower, and the purchaser is a lender. The bond purchased has no greater value than a piece of paper except as evidence of the loan and as the means to secure its payment when due. When due the debtor does not buy back the bond, but does pay the debt. Such is the ordinary significance of the term “bonds” when applied to securities such as were assessed in this supplemental assessment as “bonds”, and such is its significance with reference to such bonds, when they are assessed for taxes.

Nevertheless the plaintiff claims that in this case, although money at interest was assessed originally, these bonds were not assessed. The assessors testify that the $321,350 assessed as upon money at interest was for money at interest on mortgages and notes as they understood it, that they did not know that Mr. Chandler owned any bonds or stocks, and that they did not intend to include and did not include any bonds or stocks in the item for money at interest. They point out that on the assessment sheet there, was a column for Bonds Stocks; that in that column they placed the bank stock which they assessed, and that they intended to include in that part of the assessment all bonds and stocks of the defendant, that it did include all the stocks that they knew about and included no bonds specifically, because they knew of none.

To sustain the validity of a supplemental assessment it must appear that the items of property assessed were not assessed in the original assessment. It must appear that the property itself had not been assessed at all, and that it had been omitted by mistake. It is not sufficient that the assesssors through lack of information or otherwise have erred in their judgment of the quantity, quality or value of the thing assessed. Dresden v. Bridge, 90 Maine, 489. If the assessors have once assessed that property, that assessment cannot be revised by a supplemental assessment.

And in determining what was assessed in the first place, we must be governed not by what the assessors intended to do, nor by what they thought they did do, but by what they did do. And in determining what was done by them we are controlled by the official record of their doings, that is by the assessment itself. The assessment cannot be modified or limited by evidence aliunde. This record shows that money at interest was assesssed, and we think such an expression was broad enough to cover all forms of interest-bearing securities, whether represented by notes or bonds or otherwise. And further we hold that all such securities must be deemed to be covered by the phrase, money at interest, unless the contrary appears from the assessment itself. If the assessors have erred in determining the amount of money at interest, they cannot cure their error by securing a revaluation through a supplemental assessment, even though their error arose from their ignorance of the specific kinds of securities in which the money at interest was invested.

But the plaintiff claims that the original assessment here does show that “bonds” were not included in the money at interest. The assessment sheet was ruled into columns. One column was headed by the words STOCKS BONDS, another by the words, MONEY AT INTEREST. And it.is argued that because the word Bonds is placed at the head of a column, distinct from a column headed by the words Money at Interest, it must be held that the assessors did not intend to include, and did not include bonds under the assessment of money at interest. We do not think this conclusion follows. However the columns were headed, it was competent for the assessors to assess bonds separately from other items of money at interest, as perhaps they would have done had they known of them; or they might assess them collectively as money at interest. In this case as to bonds they did neither. They did not attempt to assess by items of any kind, or to exclude any items from any particular class. They “doomed” the defendant. They made no assessment for bonds, in the appropriate column, but they assessed such a lump sum in the column for money at interest, as in their judgment the defendant was liable to be taxed for. R. S. (1883), c. 6, § 93. And that covered undisclosed bonds. Having done so, they could not after-wards by supplemental assessment assess particular items which were covered by the terms of the original assessment. The ruling of the justice at nisi prius in this particular was therefore right, and the plaintiff’s exceptions must be overruled.

II. But the defendant does not admit that any portion of the supplemental tax is recoverable, and he excepts to the ruling, “that the tax on the stock and scrip is valid, and being valued and assessed separately can be enforced and is recoverable in this suit.”

The defendant contends, in the first place, that the full amount of the money which the voters of New Gloucester voted at the annual meeting to raise was assessed in the original assessment, and that by the payment of the original tax assessed against him, he has paid his full share thereof; and further that the assessment of a supplemental tax under such circumstances would be in violation of R. S. (1883), c. 6, § 91, which provides that “no assessment of a tax by a town or parish is legal, unless the sum assessed is raised by vote of the voters, at a meeting legally called and notified.” Such an objection as this would apply to all supplemental assessments. And yet the statute elsewhere expressly provides for them. R. S. (1883), c. 6, § 35. Taking both of these statutory provisions together, it is evident that the provisions of section 91 were not intended to apply to supplemental assessments, but to original ones, and that' a supplementál assessment may be laid on property omitted by mistake in the original assessment, even though it may result in a surplus in the town treasury.

Again, it is contended that the supplemental assessment should have been made' to the guardian of Mr. Chandler, and not to himself, under R. S. (1883), c. 6, § 14, paragraph V, which provides that “the personal property of all other persons (than minors) under guardianship, shall be assessed to the guardian-in the town where the ward is an inhabitant.” We do not think so. The original assessment, though dated May 31, was made as of April 1, 1902c On April 1 Solomon H. Chandler was sui juris. He had no guardian. The assessment of that date was made to him. It could have been made to no other. A supplemental assessment is a part of the original, an amendment of it — a supplement to it. Bangor v. Lancey, 21 Maine, 472. Like the original it must be made as of April 1, and we think it must be made to the same person as it would have been if it had been made on April 1. The authorities relied on-as showing the contrary do not do so in fact. In Fairfield v. Woodman, 76 Maine, 550, and Dresden v. Bridge, 90 Maine, 489, the representative parties to whom taxes should haye been assessed were appointed and qualified prior to April 1 of the years when the taxes in question were assessed. Not so here.

And lastly, the learned counsel for the defendant suggest that if “bonds” are money at interest, stocks may also be so regarded, and if so, that they were covered by the original assessment of money at interest. This suggestion cannot prevail. The distinction between stocks and bonds is essential and vital. We have already considered bonds. Stock, in corporation law, instead of being the evidence of indebtedness, is a right to partake according to the party’s subscription or ownership, of the surplus profits obtained from the use and disposal of the property of the corporation. Angelí and Ames on Corporations, § 557. A share of stock is the interest which the shareholder has in the corporation, which is the right to participate in the profits of the corporation, and, upon its dissolution, in the division of its assets. Burrall v. Bushwick R. R. Co., 75 N. Y. 211. The stockholders do not own the corporate property. The corporation owns the property, but iu a broad sense, the stockholders own the corporation. And without too much refining, to assess stock is to assess the stockholders’ proportionate right in the corporation itself, his right to have the corporate purposes carried out, his right to profits, if any, and to a proportionate division of the assets upon dissolution. This differs toto coelo from money at interest. These observations apply equally to scrip, which in corporation parlance is the certificate, or evidence, of the right to obtain shares in a corporation. It follows, therefore, that the defendant can take nothing by his exceptions.

Both bills of exceptions overruled.