Mosher vs. Robie & al., 11 Me. 135

Parris J. delivered the opinion of the Court as follows : By statute, chap. 116, sec. 14, assessors are authorised and empowered to apportion on the polls and estates, according to law, such additional sum, over and above the precise sum to them committed to assess, as any fractional division of such precise sum may render convenient in the apportionment thereof, not exceeding five per centum on the sum so committed. —But the assessment of more than five per cent, above the sums voted to be raised, makes the assessment illegal and void. Libby v. Burnham, 15 Mass. 144.

In this case, the assessment was too large, unless the sum allowed to the collector for collecting the taxes, can be»considered as constituting a part of the sum committed to the assessors to assess. Such, we think, cannot be considered the legal construction of the vote, especially when compared with the other vote, passed at the same meeting. The Parish first vote to assess on the polls and estates of the parishioners, certain sums for the minister’s salary, for taking care of the vestry, and for music, and this is the only vote for lire assessment or raising of money.

Subsequently, the Parish vote to allow the collector ton dollars, for collecting the taxes. It is contended, that it must be presumed, that the Parish intended to raise this additional sum for paying the collector, and to have it included in the assessment, as there was no other way of providing the means. That does not appear. We do not know but the Parish had a productive fund, from the proceeds of which this sum was to be paid, or an unexpended balance remaining in tlie treasury.

The vote, allowing the collector a certain sum for his services, is similar, in its legal effect, to a vote, allowing an account for any other services. It authorises the payment of such account,, but it does not provide the means. So far as we are acquainted with the mode of transacting business by towns or parishes, it has never been considered that a vote to allow or pay accounts, was a vote to raise or assess money ; especially since the case of Libby v.

Burnham, where, as stated by counsel, the excess of assessments arose from the assessors’ adding the fees or commissions, allowed by the town to .the collector; and the Court decided that such excess rendered the whole assessment illegal and void. If the assessment made by the defendants is void, it follows, that they are answerable in this action, unless protected by tbe statute of 1826, ch. 337, sec. I.

That statute provides, “that the assessors of towns, plantations, parishes, and religious societies shall not hereafter be made responsible for tbe assessment of any tax, which they are by law required to assess ; — but tbe liability, if any, shall rest solely with said towns, plantations, parishes, and religious societies ; ■ — ■ and the assessors shall be responsible only for their own personal faithfulness and integrity.” We readily admit the soundness of the position, taken by the defendants’ counsel, that such a construction should he given to this statute as will carry it into effect.

In order to understand the object of the framers of the statute, it should be kept in mind, that previous thereto, assessors were not only answerable for their own neglects, but also for the omissions or illegal acts of others. Stetson v. Kempton, 13 Mass. 272. If they assessed a tax, void by reason of irregularity in the proceedings of the town, or parish, or its officers, the assessors were held responsible to the individual assessed, provided the assessment was enforced.

The object of the statute of 1826 was, no doubt, to relieve them from this hazardous accountability for the omission of others, permitting them to remain answerable only for their own misdoings. If they assess what they are not by the corporation, of which they are assessors, required or authorised to assess, the protecting statute does not reach them. It could not have been intended, that in such a case, the individual aggrieved should be without redress. The tax is void, in consequence of the proceedings of the assessors.

The property of a citizen has been taken by their order, contained in their warrant to the collector, to satisfy this void tax, and can it be that the law affords no remedy ? Is the parish answerable ? It has in no way authorised the procedure. It did not require the assessment of the excess; and unless made liable by statute, cannot be holden to the party injured by such assessment. It is not a faithful discharge of the assessors’ duty, to require a collection greater than is authorised by the vote of the town or parish, and the additional five per cent, allowed by law.

The question, whether an individual is liable to taxation in a particular town or parish, is often one of very considerable nicety, and which, with the exercise of all personal faithfulness and integrity, may sometimes, by assessors, be decided wrong; and yet it has been held in Massachusetts, where assessors are responsible only for their integrity and fidelity, that if the assessors of a religious society, assess a tax on a person who is not a member, they are liable to an action of trespass : — for they do not come within the provisions in the statute, that in certain cases, they shall be responsible only for their own integrity and fidelity.

Gage v. Currier, 4 Pick. 399. We think the true construction of our statute, ch. 337, sec. 1, is to leave the assessors answerable for their own misdoings, and relieve them from all liability, arising from the misdoings of others.