Ellsworth American. [volume] (Ellsworth, Me.) 1855-current, 1911-03-15
FROM THE LAW COURT.
Bresnaham VS.. Sherwin- BurriI Soap
Company.

Bresnaham VS.. Sherwin-Burrin Soap
Company.
The decision of the law court in the tax
case OF Bresnahan vs.. Sherwin- Burrill
Soap Co. has been handed down. The
full rescript, which is by Justice Spear,
is as follows:
This is an action brought by the plaintiff.
collector of taxes, under revised statutes
chapter 10, section 20, against the defendant,
to enforce the lien for taxes prescribed by
revised statutes chapter 9, section 8, upon the
property described in the writ. To sustain
this form Of action n is incumbent upon the
plaintiff to establish the following PROPOSE
tions: u that the tax was legally assessed.
| (2) That it was legally committed to an officer
for collection. (a) That the defendant was
| the owner or person in possession Of the
property described in the writ. Proof Of the
| second proposition is eliminated by the ad-
mission that the warrant was in proper form,
bond filed, and the tax sued for included in
| the commitment to the collector. Proof Of
| the third proposition sufficiently appears
from the record. Besides this defense of nom
ownership and nom possession is upon the
facts not open.
l 1uc lcSailty vi tut dsSSssucutl Is EaiSCd upoh
| the contention OF the defendant that the city
records show de facto and not dejmre board
of aldermen, who undertook to elect assessors
| and a tax collector. The only irregularity
complained Of in the election of the board OF
| aldermen is that the constable il his return
upon the warrants for the ward meetings
| failed to state that they were posted in public
and conspicuous places. The plaintiff, never
Il al ed hat he MI in,
fact posted in public and conspicuous places,
| and that the return, although defective, could
be amended by the officer who made it, by
| stating the omitted facts.
| 1t is not now necessary to pass upon the val
! idity of the officers act in lending his re-
turn, inasmuch as revised statutes, ch apter A,
section 10, specifically prescribes the manner
in which such amendment may be made. See
also revised statutes, chapter 10, section 20.
Since perfectly regular and legal way for the
| amendment is prescribed, and since just tax
| should not be evaded by en- omission IN the Of
| fcer's return, we deem it proper, If no other
defects appear, to order the report discharged
| and the case remanded to nisi for an amend
me mt of the officers return u accordance with
the truth and the above provisions Of the stat
| ute.
L The other aspects Of the case will be dis
cussed upon the assumption of an amended
return. legal meetings, and the consequent
election of a de jure board of aldermen.
1t appears from the evidence that Mr.. Tripp
was elected tax collector for the year 1904, and
that, before he had Completed the collection
Of the taxes, he resigned because of business
pressure. The present plaintiff was ther
| elected collector, to whom was committed fol
| collection the uncoilected taxes for 1904. i
ciuding the tax invoved in the present suit
| Upon these facts the defendant contends tha
Tripp could not legally resign his Office; and
consequently there was no vacancy to which
Bresnahan could be elected.
If for the sake of argume Mt this Is admitted
thequestion is not now open to the defendan mt
| The prese Mt action is in proper form and pur
portsA to have been brought by the off1cia
| authorized by law to institute the suit 1t il
| the opinion OF the court that the capacity O
the plaintiff 10 sue must be attacked by pie
iu abatement AID cannot, under the genera
| issue, be raised upon the question of proof.
AS no other defects appear, the repor
should be discharged and the case remande,
to ntst for the amendment OF the consta BILE
return, as herein permitted. So ordered.