
    Albert J. Mowry, Collector, vs. Marquis D. L. Mowry, Administrator. Jabe J. Appleby, Collector, vs. Same.
    PROVIDENCE
    MAY 3, 1897.
    Present : Stiness, Tillinghast and Douglas, JJ.
    A town, at its annual town meeting in three successive years, voted that a sum stated “be assessed as the tax for the ensuing year.” The warrants calling the meetings, and read therein before the votes were passed, specified that the meetings were “for the purpose oí ordering a tax for the support of public schools, for the aid of public libraries, for the repair of highways and bridges, for the payment of the state tax,” &c.:—
    
      Held, that it was not a fatal error that the objects of the tax were not specified in the votes.
    
      Held, further, that the form of words in which the vote was recorded was immaterial, the record being sufficiently definite to express the intention of the voters.
    
      Held, further, that the votes were not fatally defective in not designating the kind of property on which the assessments were to be made, since the law defined the property on which the taxes were to be levied as clearly as the votes could have done.
    The tax ordered for one of the years mentioned was at the rate of one dollar and fifteen cents on each one hundred dollars of the ratable property assessed in the town : — •
    
      Held, that under Pub. Stat., cap. 34, § 18, a tax could not be ordered for more Ilian one per centum of the taxable valuation of such property.
    
      Held, further, that the whole tax was not thereby void as the excess was easily separable from the lawful levy.
    Action to recover town taxes.
    Certified from the Common Pleas Division on waiver of jury trial, and heard on the pleadings and evidence.
   Douglas, J.

These cases were brought by the collectors of taxes of the towfi of Smithfield to recover the town taxes assessed against the defendant in that town for the years 1892, 1893 and 1894, and were heard by the court, jury trial being waived.

The defendant admits that he possessed ratable property in said town at the times charged, but makes many objections to the validity of the taxes ordered in these years. Several of these defences disappeared at the hearing, as they were contradicted by the evidence produced.

It appeared, however, from the town records, that the votes of the electors ordering these taxes in the years 1892, 1893 and 1894, did not designate upon what kind of property the tax should he assessed, nor what purposes the tax was to be assessed for, and that in 1894 the tax ordered was in excess of one per centum of the value of the ratable property of the town.

The votes ordering the assessment of the taxes were as follows :

For the year 1S92 :

“ Voted, that not less than twenty thousand dollars nor more than twenty thousand five hundred dollars shall be assessed as the tax for the ensuing year.”

• For the year 1893 :

“Voted, that not less than seventeen thousand five hundred dollars nor more than eighteen thousand dollars shall be assessed as the tax for the year ensuing.”

For the year 1894 :

“Voted, that not less than sixteen thousand dollars nor more than seventeen thousand dollars be assessed as the town tax for the ensuing' year. ”

The meetings at which these taxes were ordered were the regular annual town meetings required by law to be held on the second Tuesday in June “ for ordering town taxes.”

The warrants issued for the warning of these meetings, and which were read therein before the votes were passed, are of similar tenor, and all specify as the object of the meeting ‘‘ for the purpose of ordering a tax for the support of public schools, for the aid of public libraries, for the repairs of highways and bridges, for the payment of the state tax,” &c., &c.

These are all lawful objects for which a town may tax its inhabitants and their property. Pub. Stat. R. I. cap. 34, §§ 3 and 5, provided notice be given in the warrant that it is intended to order a tax. Pub. Stat. cap. 35, § 12.

We do not regard it as a fatal error that these objects were not specified in the vote itself. As we have said, the meeting was called for the purpose of ordering the annual town tax. No elector present could be ignorant, when called upon to vote upon the proposition that he was to decide, that, if carried, it meant to impose an annual tax of a certain amount upon his property, to be collected and paid into the town treasury, and to be subject to appropi’iation for the obligations of the town specified in the warrant. Whether the expression of the voter’s will in this behalf was by raising the hand, casting a ballot or uttering a response, is immaterial, and so we think is the form of words in which the vote is recorded, provided the record is sufficiently definite to express the real intention of the voters.

This conclusion is amply supported by the authorities cited in behalf of the plaintiffs.

Cooley on Taxation, p. 337, says : “In voting the tax the people will be acting in their political capacity, and their action is to be favorably construed, and not to be overruled or set aside by judicial or any other authority, so long as they keep within the limits of power bestowed upon them. Technical defects and irregularities should be overlooked, so long as the substance of a good vote sufficiently appears, for the obvious reason that local business is largely and of necessity in the hands of plain people who are unskilled in the technicalities of law and unaccustomed to critical or even accurate use of language. A strict construction of their doings would inevitably be mischievous, and would defeat the collection of the revenue in very many cases. It will be found, therefore, that the courts sustain such action wherever sufficient appears to make plain the intent of the voters, provided the intent is warranted by the law.”

If the purpose to levy the tax and have it collected is plainly manifest the court will hold the levy good, although there may he technical defects, omissions and irregularities. West v. Whitaker, 37 Ia. 598.

In Shontz v. Evans, 40 Ia. 139, the court held that if the object of the tax is made certain by law the levy will be held good, although not definite in terms.

See also, as to the effect of irregularities not controverting the intention of the electors. Benjamin v. The District Township of Malaka et al., 50 Ia., 648 ; Jefferson County Com. v. Johnston, 23 Kan. 717.

The objection that the vote did not designate the kind of property to be assessed is based upon the assumption that under sec. 3 of cap. 34, Public Statutes, towns are given the power to raise by tax on real or personal property, or on both, such sums as shall be necessary for certain specified objects, and .that hence they have an option to tax either kind of property and must elect by their vote which kind the tax shall be levied upon.

This contention might be tenable if this section referred to were the only provision on the subject, but there are other provisions in the statutes which limit the general enumeration of the powers of towns given in this chapter. Sec. 3 of cap. 43 provides that ‘ all property liable to taxation shall be assessed at its full and fair cash value ; ” and sec. 4 of the same chapter provides, ‘ ‘ The assessors shall assess and apportion any tax on the inhabitants of the town and the ratable property therein, at the time ordered by the town.” As is urged by the plaintiff, if the electors had the right to order the tax upon any but entire ratable property, it would be impossible for the assessors to assess such a tax under the provisions of secs. 3 and 4 of cap. 43. But the power of the town in this regard is defined by § 1 of cap. 43, which provides as follows : “ The electors of any town qualified to vote on a proposition to impose a tax, when legally assembled, may levy a tax for the purposes authorized by law, on the ratable property of the town,” &c.

The law then supplied the omission of the vote, and defined the property upon which the tax was to be levied as clearly as the vote could have done.

In regard to the tax of 1892, it appears that the tax voted was at the rate of one dollar and fifteen cents upon each one hundred dollars of the ratable property assessed in the town. Pub. Stat. R. I.,'Cap. 34, § 18, provides : “No town shall assess its ratable property in any one year in excess of one per centum of its ratable value, except for the purpose of paying the indebtedness of such town or the interest thereon, or for appropriations to any sinking fund or extraordinary repairs for damages caused by the elements.”

Now, following out the conclusion we have arrived at in discussing the validity of the form of vote, we must hold that the tax, being levied for the purposes named in the warrant, could not be ordered for moi*e than one per cent, of the taxable valuation of the property in the town. The defendant contends that the whole tax is therefore void. We do not think so. The town had a right to order a tax of one per cent. The exigencies of the town required a tax to be levied, and the excess can easily be separated from the lawful levy.

In Mix v. People, 72 Ill. 241, the Illinois statute (similar to this State) 8th Sec. Article 9, provided, “that the County Authorities shall never assess taxes the aggregate of which shall exceed 75 cents per $100 valuation, except for the payment of indebtedness existing at the adoption of this constitution, unless authorized by a vote of the people of the County.” The opinion says'that “This provision renders all of this tax void which is in excess of the constitutional limit; b\it the books abound in cases which hold that, in the exercise of a power, any excessive action beyond that power will not vitiate acts within its power, where the acts well performed can be separated from those that are unauthorized. Here, there can be no question that 75 cents on the $100 valuation was fully warranted, and that sum can be readily separated from the illegal and unauthorized sum levied in excess of that amount. It requires but a simple calculation to make the separation with precision.” And, after citing several Illinois cases, the court continues: “ It has been so repeatedly held that an illegal levy of a tax does not vitiate or affect the portion legally levied where the two' can be separated, that the question must be regarded as settled.” The same doctrine is held in DeFremery et al. v. Austin, 53 Cal. 380 ; O'Byrne et al. v. Mayor & Aldermen of Savannah, 41 Ga. 331; Burlington & Missouri River R. R. Co. v. The Board of County Com. of York County, 7 Neb. 487 ; Bright v. Halloman, 7 B. J. Lea, (75 Tenn.) 309; Vance v. Little Rock, 30 Ark. 435 ; Frazer v. Siebern, 16 O. St. 615.

James Harris, for plaintiffs.

Marquis D. L. Mowry, for defendant.

Judgment should be entered for the plaintiffs for the amount of the 1893 and 1894 taxes with interest, and for one per centum on his ratable property for 1892 with interest.  