
    Nathan B. Martin versus William Mansfield and Others.
    The tenant, in the actual occupation of land, is liable to be assessed for it, in ■ parish taxes, and not the owner of the land, who lives in another town.
    Trespass for taking and carrying away the plaintiff’s chaise, &c.
    Two of the defendants plead, as to the force and arms, and whatsoever is against the peace, not guilty, and therefore put, &c.;—and the plaintiff likewise.
    * “ And as to the residue of the trespass in the plain- [ * 420 ] tiff’s declaration supposed to be done, the said Breed and Rhodes say that the plaintiff his action aforesaid thereof against them ought not to have or maintain, because they say that the inhabitants of the first parish in Lynn aforesaid, at a meeting thereof legally notified and holden for that purpose, on the 17th day of April, A. D. 1804, voted and granted the sum of 581 dollars and 47 cents, for the maintenance and support of the Rev. T. C. Thatcher, a minister of religion legally settled in said parish, and for other necessary charges arising within the same. And the said B. and R., being assessors of said parish for the year 1804, and also for the year 1805, legally chosen and qualified, did on the 20th day of June, in the year 1804, assess and apportion the sum aforesaid upon all the polls of the inhabitants of, and estates within said parish, according to the rules prescribed in the then last tax act of the General Court, and a perfect list thereof make out under their hands,' and the same then and there commit to the said Mansfield, who then and there also, at the said time when, &c., and long before and afterwards, was a collector of taxes for said parish, legally chosen and qualified, and did there afterwards, on the 12th day of November, A. D. 1805, make and deliver to him a warrant, under their hands and seals bearing that same date, requiring him to levy and collect of the several persons named in said list their respective proportions therein set down of the sum total thereof, and the same to pay to the treasurer of the said parish, according to law. And they further say that the said Martin, during the whole of the years aforesaid, owned and possessed real estate and personal estate, situate within the same parish, and that they assessed and apportioned on him for his said real estate, 11 dollars and 16 cents, and for his said personal estate, 2 dollars and 72 cents, and the same set down in said list as his proportion of the sum granted by said parish as aforesaid. And they further aver that the said sums, so assessed on said Martin for his real and personal estate aforesaid, were his just and due proportion of said tax, and no more; and the said . Mansfield afterwards, on the said 26th day of March, being collector of taxes for said parish, for the year 1805, legally chosen [ * 421 ] and qualified, and having said * list of taxes with the said warrant committed to him as aforesaid, by virtue thereof demanded of said Martin payment of the sums assessed on him as aforesaid, and because he refused to pay the same, and in order to levy and collect the same, according to the requirements of said warrant, the said Mansfield afterwards, on the same day, within said parish, distrained said Martin by his said chaise, and the same distress kept until he paid the sums aforesaid, being a space of half an hour, as it was lawful for him to do for the cause aforesaid, which is the residue of the trespass complained of in the plaintiff’s declaration. And this the said B. and R. are ready to verify; wherefore they pray judgment, if the said Martin his action aforesaid against them ought to have or maintain, and for their costs.
    
      By W. Prescott.”
    
    “ And the said Martin says that, by any thing by the said B. and R. above in pleading alleged, as to the residue of the trespass aforesaid, he ought not to be precluded from having and maintaining his action aforesaid thereof against them, because, protesting that the said B. and R. were not assessors of the said first parish in Lynn aforesaid for the years 1804 and 1805, legally chosen and qualified ; and also protesting that the said B. and R. did not assess and apportion the sum so voted and granted as a parish tax upon all the polls of the inhabitants and estates within the same parish according to the rules prescribed in the then last tax act of the General Court, and a perfect list thereof make out under their hands, as they in the same plea have alleged; and protesting also that they, the said B. and R., did not commit the same to the said Mansfield with a warrant under their hands and seals bearing date as they in the same plea have alleged ; and protesting also that the said Mansfield was not at the said time when, &.C., a collector of taxes for said parish legally chosen and qualified, as they have alleged ; and protesting also that he, the said Martin, at the time of the granting and voting, and also of the supposed assessing of the tax aforementioned upon him as in the same plea is alleged, was not liable by law to be assessed and apportioned therefor; for plea he says that at the time of the granting and voting of the [ * 422 ] * parish tax aforesaid, and long before, he was and ever since hath been an inhabitant of the town of Marblehead in the same county, and not an inhabitant of the town of Lynn aforesaid, and at the several times in the same plea mentioned, he was the owner of one certain messuage and farm with the household furniture, implements of husbandry and stock thereto belonging, which said farm and messuage, furniture, implements and stock at the several times in the said plea mentioned, and long before and "long afterwards, were in the actual occupation and tenancy of one Abraham Kimball, there resident and inhabitant, tenant thereof by parole demise from him, the said Martin, for one year from the first day of January then next preceding the granting and voting of the parish tax aforesaid, and so from year to year so long as the said Martin and Kimball should please, he the said Kimball yielding and paying therefor one half of the annual produce and profits of the demised premises; which said tenements and property are the real and personal estate for which said Martin was taxed in the tax aforesaid; without this that he, the said Martin, at the several times in the same plea mentioned, was the owner or possessed of any other personal and real estate than aforementioned within the said first parish of said Lynn; all which he is ready to verify; wherefore he prays judgment for his damages and costs to be adjudged to him.
    
      By Joseph Story.”
    
    To this replication the defendants demurred generally, and the plaintiff joined in demurrer.
    The other defendant (Mansfield,) pleaded severally the same plea, tv which there was a similar replication, and a general demurrer and joinder.
    
      Prescott, in support of the demurrer,
    observed that the case lay within a narrow compass, and was wholly displayed in the pleadings. The question arising out of these pleadings he presumed to be, whether the owner of land, lying in a town other than that wherein he dwells, and whereof he is an inhabitant, and which is in the occupation of a tenant for a share of the produce as a rent, is liable to be taxed for such land in the town and parish wherein it lies. The answer to this question must be derived-from the then last preceding tax act of the commonwealth, the standing * law on this subject directing that all county, town and [ * 423 ] parish rates and taxes shall be assessed and apportioned by the assessors of the several towns, &c. upon the polls and estates within the same, according to the rules prescribed in and by the then last tax act of the General Court .
    By the tax act for the year 1804, the assessors are required to assess the remainder (after deducting the sums assessed on the polls), 1st. On the inhabitants of such town, &c., according to the just value of the real estate possessed by each inhabitant on the first day of May, in right of himself or of others, lying within the town, &c., improved or not improved: 2d. Upon the owners of real estate in such town, &c., whether such owners reside within the same town or not upon the said first day of May: and, 3. Upon the nonresident proprietors of real estate lying within such town, &c., in their own right or in the right of others, improved or not improved; saving all agreements between landlords and tenants; and where no agreement is, the landlord to reimburse such "tenant one half of such tax.
    It is observable that the words in the 2d class of taxable property above cited, “ whether such oiuners reside,” &c., were not in any tax act prior to the year 1804. They seem to have been inserted with peculiar reference to cases like this now before the Court. Under former acts, doubts had arisen whether non-resident proprietors of improved lands, in the occupation of tenants, were liable to be taxed for such lands. This new clause was introduced to clear up the doubt, and to make the recovery of the tax more certain than it would be if assessed upon the tenants alone, who might be, and in this country, where a fee in land is so easily obtained, generally are among the most indigent. Resident and non-resident proprietors of land in their own actual occupation were clearly made liable before. This new clause applies to the case of non-resident proprietors, who have tenants on their lands, and it applies to none others. If the plaintiff was legally taxed for his land, little doubt will remain that he was equally liable for the stock and implements attached to the farm, and necessary tovits occupation.
    * Story, e contra.
    
    Two objections lie against the defence set up by these assessors.
    1. The plaintiff contends that these assessors, chosen for the year 1805, had no authority to issue their warrant for the collection of a tax voted by the parish and assessed upon the inhabitants during the year 1804. The particular fact in this case, that the same individuals were reelected, makes no difference. Their authority tc make a warrant for this tax ceased with the year for which they held their office; and their reelection was not a continuance o~ renewal of their former powers, but clothing them with new powers distinct and unconnected with the former. If this position is just .the warrant was illegal, and the defendants wholly fail in their justification.
    The particular provisions in the statutes authorizing assessors to appoint a new collector, in case one has died before completing his collection , empowering old collectors or constables tc perfect their collections, though their term of office shall have expired, and new ones shal have been chosen , and authorizing assessors for the time being to issue a warrant to a new collector chosen to perfect the unfinished collection of a former one who is taken in execution , all go to show that without such special authority from statute, town and parish officers have no power to enforce payment of taxes other than those assessed within the year for which they were chosen.
    2. The second objection, on which the plaintiff principally relies, is that he is not liable to be assessed for land under the circumstances disclosed by the pleadings in this action; in other words, that the tenant in possession is owner of the land quoad hoc, and alone liable to be rated by the assessors.
    The statute, which requires the taxes of towns, parishes, &c., tc be apportioned according to the rules of the last preceding tax act, does not by any necessary construction intend to designate the persons liable to be taxed, but to prescribe the relative proportion which that part of a tax to be assessed on the polls shall bear to the remainder to be assessed *on estates. This [ * 425 ] gives sufficient force and meaning to the expression, and, it is apprehended, has been the general practical construction of the clause. This construction is also confirmed by the provision of stat. 1799, c. 87, § 4, that town or parish taxes raised for the support of public religious instruction, shall be assessed on all the ratable polls and. property within each corporation, in the same proportion as state and town taxes are by law assessed.
    
    By stat. 1785, c. 70, >§> 10, a particular remedy is furnished for the case where the owner or tenant of any improved lands, liable to pay taxes, shall not reside within the town, &c., where such lands lie, and no sufficient distress is found on the lands to satisfy such sums as from time to time such lands shall be assessed. The inference from this is irresistible, that the legislature contemplated tenants as liable to be taxed for lands in their occupation, although not inhabitants. The 14th section of the same statute speaks expressly of persons who may be taxed for real estate in their possession, who are not the owners or proprietors of such estate, and gives a remedy for the more certain recovery of such taxes.
    The provision contained in every tax act, “ saving all agreements between landlords and tenants; and where no agreement is, the landlord to reimburse such tenant one half of such tax,” and there being no provision for a reimbursement by the tenant to the landlord prove not only that the tenant is liable, but that he is alone liable to be taxed for lands in his occupation.
    The expression in the tax act, which seemed to be relied on by the counsel for the defendant, to show owners liable to be taxed for lands not in their occupation, “ whether such owners reside within the same town or not upon the said first day of May,” was introduced to remove doubts which existed as to the taxing of estates occupied by gentlemen as their country residences, and who sometimes remove to them before, and sometimes after the first of May. But at any rate it has no bearing upon the present case, which is clearly within another class of taxable property, viz. land possessed by an inhabitant. It appears from the pleadings, that Kimball was an inhabitant of Lynn at this time, and in possession of [ * 426 ]. * the property upon which this tax was assessed. It can make no difference in the decision of this question whether he was tenant for one year or for nine hundred and ninety-nine years.
    If this is not the true construction, and if assessors may elect to tax landlord or tenant at their pleasure, a door is opened for cor ruption, by bargaining between the assessors and the tenant, against which latter, as has been observed, the law gives no remedy to the landlord.
    Inhabitants of towns paying, besides a poll tax, a sum equal to two thirds of a poll tax, have by law  a right to vote in the choice of town and parish officers, and in other town and parish affairs. But upon the construction contended for on the other side, an inhabitant may be tenant, for never so long a term of years, of a farm comprehending half a parish, and yet never have a voice in the affairs of the town or parish, of which he is an inhabitant.
    By the third article of the declaration of rights, which is enforced by the stat. 1799, c. 87. § 4, all persons are to be taxed for the support of public worship, and any person may require the moneys paid by him to be paid over to the public teacher of his own religious sect. The doctrine maintained by the defendant’s counsel goes to annul this valuable constitutional provision. If this tax is well laid upon the plaintiff, he has, or he has not, a right to recover one half of it of his tenant. If he has such right, and the tenant has paid his own minister, the tenant is doubly taxed; if he has not such right, the tenant escapes altogether from the payment of parochial taxes.
    in England, the poor rates, which are assessed much in the manner of our direct taxes, are charged upon the occupiers of land only, and if charged upon the landlord, he is not bound to pay, where there is a tenant in possession .
    
      Prescott, in reply,
    as to the first objection to the defence set up, observed that assessors, for the time being, were the legal successors of the former assessors, and had all necessary authority in the several objects of their appointment. It is a very common practice for assessors to deliver to collectors * rate lists [ * 427 ] without any warrant, in the expectation that none will be necessary. If one is afterwards found necessary, the existing assessors make it. Suppose a warrant to be lost or destroyed by accident, and a set of assessors, other than those who issued it, are in office; will it be said that the tax is to be lost, and that there is no authority existing to make a new warrant ?
    Allowing, however, that the transaction in this case was not perfectly regular, the irregularity is more in form than substance. The Court will support the doings of officers, against whose fairness oi integrity no suggestion is made, if possible, to avoid the great and manifold inconveniences which would arise from setting aside a public tax.
    As to the second objection, that the plaintiff was not liable to be assessed at all for this land, it is well known that tenants are frequently unequal to the payment of the taxes set upon the farms they occupy, and though by law the stock, &c., upon such farms is liable to be taken by distress, yet that sometimes proves insufficient, and sometimes is driven away and concealed. Provision was wanted, by which the real owner of the land should be made responsible; and, with this view, the new clause was inserted in the tax act for 1804.
    If a tenant is not possessed of property in his own right, for which he can legally be taxed to the amount of two thirds of a poll tax, it must be considered as an object of no great importance to secure him a vote in the affairs of the town or parish. There is, however, no reason why he should avail himself of another’s property to obtain this privilege.
    So as to ministerial taxes, the tenant may still require the tax assessed on his poll and estate to be paid over to his own teacher, and no reason can be given why he should carry the tax set upon his landlord’s property to his own minister, while the real owner may be of the same denomination with the regular minister of the parish, and may desire it paid towards his support.
    
      
      Story,
    
    perceiving that the Court inclined strongly to the opinion that this action could not be maintained against the collector, struck his name out of the declaration by consent.
    
      
      
        Stat. 1785, 0. 50, § 8.
    
    
      
       Stat. 1785, c. 70, § 1.
    
    
      
      
        Stat. 1785, c. 70 § 8.
    
    
      
       Ibid. c. 46. § 14.
    
    
      
      
        Stat. 1785, c 75, § 1.—1786, c. 10. § 1.
    
    
      
       1 Woodeson, 275.
    
   The opinion of the Court (the Chief Justice not' sitting in the cause, having been engaged in it as counsel while at the bar) was afterwards delivered as follows, by

* Sedgwick, J.

This is an action brought by the plaintiff against the defendants, who were assessors of the first parish in the town of Lynn.

The defendants were assessors of that parish in the years 180-1 and 1805. In June, 1804, they made an assessment of a parish tax duly granted ; and in November, 1805, made their warrant to the collector for its collection. The plaintiff, at the time of granting the tax, and ever since, was an inhabitant of Marblehead, and not within the parish or the town of Lynn. He was, notwithstanding, in the assessment of the defendants, taxed for a farm lying within the parish, and for certain personal property, consisting of the stock and utensils of the farm, then in the actual occupation of one Kim-ball, tenant thereof, from year to year.

There are two reasons given why the plaintiff should prevai. in this action:—

1. Because the tax ought not to have been assessed against him, but against his tenant.

2. Because the assessors, although the same persons, could not by law make the warrant in one year for a tax, which they had apportioned in a preceding year.

As to the second point I give no opinion, being decidedly in favor of the plaintiff upon the first.

•Parish assessors are to make the apportionment of their taxes according to the rules prescribed in the next preceding tax act of the legislature. In the tax act passed in 1804, by which the defendants should have governed themselves, the assessors were directed to assess, for real estate, by three descriptions:—

1. To assess on the inhabitants of the town, &c., respectively, according to the just value of the real estate possessed by each inhabitant of such town, &c., on the first day of May, in his, her, or their own right, or in the right of others, lying within such town, &c. According to this direction, it was, in my opinion, the duty of the assessors (and this by the express words of the statute) to tax all the land, actually possessed to the persons possessing the same. And as the land, for which the plaintiff was taxed, was then actually possessed by his tenant, and not by him, it could not be legally charged to him.

*The 2d description of real estate to be taxed, is in [ * 429 ] these words, “Upon the owners of real estate in such town, &e., whether such owners reside within the same town or not, upon the said first day of May.” This provision (and it seems to me a reasonable one) was, in my opinion, manifestly intended to apply to such real estate, of which there is a good deal in this commonwealth, which is part of the year actually possessed, and part of the year vacant; and authorized an assessment of it to the proprietor, although he might not be in the actual occupation of it on the first day of May.

The 3d description is of the proprietors of non-resident real estate; and this extends, as the terms import, to proprietors of lands and real estate, who do not reside within the town, &c., where it lies ; and to real estate, which is not in the actual occupation of a resident within the town.

As to the personal estate of the plaintiff, if it could have been taxed to him at all, it must have been done by the town and parish where he was an inhabitant, and not at Lynn, where he was not .

Replication adjudged good. 
      
       [Vide Thurston vs. Little, post, 432.—Ed.]
     