presenting such list, to make solemn oath, that the same is true; which oath, the assessors, or either of them, are empowered to administer; and such list, being exhibited on

Where the assessors suspect any falsehood in the list presented, they are empowered to administer an oath

senting the same.

such list, when sworn

oath, shall be a rule for that person's proportion of the tax, to the person prewho presented the same, which the assessors may not exceed, unless they shall discover any error therein; in which case, the assessors are authorized and directed to assess such articles as appear to be kept back.

IX. Of their general power and duty, in the act of as

sessment.

to, to be received as

true, unless some er

ror be detected therein.

Town and district assessors to make assessments according

having made perfect

mit the same to an

officer for collection.

Their duty to return

to the treasurer.

1. Assessors, chosen by towns and districts, are directed to assess the polls of, and estates within, such town or dis- Mass, Stat. Feb. 20, trict, their due proportion of any tax, according to the rules 1786, act 1, sect. 1. set down in the act for raising the same, and make perfect lists thereof under their hands, or the hands of the major to law, and, after part of them, and commit the same to the constable or lists thereof, to comconstables, collector or collectors, sheriff or his deputy, with a warrant under their hands and seals, in the form directed by the statute, and return a certificate thereof to a certificate thereof the treasurer or receiver-general of this commonwealth, for the time being, with the name of the constable or constables, collector or collectors, sheriff or his deputy, to whom they shall have committed the same assessment, with the warrant as aforesaid to collect ; and the said assessors shall also have their assessment recorded in the town or district book, or leave an exact copy thereof, by them signed, with the town or district clerk, or file such copy in the assessors' office, where any such is kept, before the same shall be committed to a constable or collector, the sheriff or his deputy, to collect; and at the same time shall lodge in the said clerk's office, the invoice or valuation, or a copy thereof, from whence the rates or assessments are made, that the inhabitants, or others rated, may inspect the same.

2.

The same statute further provides, that all county, town, district, precinct, plantation, and parish taxes and rates, shall be assessed and apportioned by the assessors of the several towns, districts, plantations, precincts, and parishes within this commonwealth, upon the polls of, and estates within the same, according to the rules that shall,

Such assessment to be

recorded; or a copy to be left with the

town or district clerk;

or such copy to be

filed in the assessors

office,before the same

be committed for col

lection. Also the vala copy thereof, to be lodged in the said clerk's

uation, or

office.

Sect. 8.

County, town, district, plantation, and parish taxes, to be assessed according to

the last tax a&.

from time to time, be prescribed and set, in and by the then last tax act of the general court. And such assessors shall cause attested copies of such assessments and valuations to

#

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.

As in the case, Martin vs. Mansfield & al., 3 Mass. T. R. 419, which was trespass, for taking, and carrying away the plaintiff's chaise, &c. The defendants pleaded specially, and justified under certain proceedings, as assessors of the first parish of Lynn; that the plaintiff was assessed in a certain sum, by reason of his being the owner of certain real and personal estate in said parish of Lynn; that the plaintiff refused to pay the sum, so assessed; wherefore, one Mansfield, (the collector of said parish, to whom the defendants had committed their warrant, for the collection of said sum, so assessed) distrained the plaintiff by his said chaise, &c., which is the trespass complained of. The plaintiff replied, that, at the time, &c., he was, &c., an inhabitant of the town of Marblehead, and not an inhabitant of the town of Lynn; and that, at the several times, &c., he was the owner of the messuage and farm in question, together with the household furniture, and implements of husbandry, and stock, thereto belonging; and that, at the several times, &c., said messuage, furniture, &c., were in the actual occupation and tenancy of one Abraham Kimball, as plaintiff's lessee, from year to year, so long as the parties should please ; 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 same, &c., without this, &c. Το this replication there was a demurrer; and the replication was adjudged good.

In this case, the opinion of the court was delivered as follows, by Sedgwick, J.

Assessors are to make the apportionment of their taxes according to the rules, prescribed in the next preceding tax act of the legislature; and 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 :-First, 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 the duty of the assessors to tax all the land, actually possessed, to the person possessing the same. And as the land, for which the plaintiff was taxed, was then actually

ments and valuations

be lodged in the clerk's office of the place where the same Copies of such assessare made, or file the same in their own office, if any such to be lodged in the they have.t

3.

clerk's office; or filed in the assessors' office.

The assessors for any town, district, plantation, pre- Mass. Stat. Feb. 20, cinct, or parish, are authorized, from time to time, to ap

possessed by his tenant, and not by him, it could not be legally charged to him.

The second description of real estate, to be taxed, is in these words; " 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." This provision was 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, on the first day of May.

The third description is of the proprietors of non-resident real estate; and this extends, as the terms import, to proprietors of land 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.

† Assessors of parishes must make a list and valuation of the taxable property, before assessing a tax, or the assessment will be illegal and void. For, per curia, in the case Thurston vs. Little & al., 8 Mass. T. R. 429; the public revenue of this commonwealth arises principally, and that of towns and parishes arises wholly, from assessments upon polls, upon the value of property possessed by the citizens, and upon their income from their several occupations and employments; and not, as in most other countries, by taxes upon certain specific articles. This value can only be ascertained, for the purpose of assessments, from the returns to be made by the persons liable to taxation, and, in case of their failure or neglect, by an estimate to be made by the assessors, known, in our country, by the word dooming. In whichever of these modes the result is obtained, it is equally required by law, that a list and valuation of each individual's taxable property be made and preserved for the inspection of all interested in the assessment. This furnishes a considerable check on the assessors, and affords a protection to the citizens against prejudice, partiality, or inattention.

1786, act 1, sect. 11.

to apportion on the

tional sum, over and

above the precise sum

to them committed to assess.

Assessors empowered portion on the polls and estates, according to law, such poils, &c. an addi- additional sum, over and above the precise sum to them committed to assess, as any fractional divisions of such precise sum may render convenient, in the apportionment thereof; not exceeding five per cent. on the sum taxed: Provided, the whole excess shall, in no case, amount to more The surplus sum to than the sum of forty pounds, the surplus sum shall be paid into the treasury of such town, district, plantation, precinct, or parish, and shall be subject to the order and disposal of such town, plantation, precinct, district, or parish; and it Assessors to certify shall be the duty of such assessors, to certify such town, district, plantation, precinct, or parish treasurer, thereof.

be paid into the treasury.

the town of such pay

ment.

Mass. Stat. Feb. 20,

1786, act 1, sect. 14.

Assessors may add the county tax to other

taxes.

1800, act 3, sect. 2

4. And whereas the county tax may often be so small, that it would be inconvenient to make a separate list of each person's proportion of it; it is therefore provided, that, in such case, it shall be lawful for the assessors of any town, district, or plantation, to add their proportion of the county tax to any of their other taxes, and make out warrants and certificates accordingly.

X. Of their power and duty relative to taxes, assessed for the erecting or repairing of school-houses.

For these purposes, every man shall be taxed in the disMass. Stat. Feb. 28, trict in which he lives, for all the estate he holds in the town, being under his own actual improvement; and all In what district, and for what estate, per- other of his real estate, in the same town, shall be taxed in the district in which it is included; and lands, when the owner thereof lives without the town, shall be taxed in such district as the assessors, having regard to the local situation Duty of assessors to thereof, shall appoint ;* and it shall be the duty of the as

sons shall be taxed.

determine in what

district certain lands

shall be taxed; and sessors, before they assess a tax for any district, to deterto certify the same. mine in which district such lands respectively shall be taxed, and to certify, in writing, their determination to the clerk

Such certificate to be recorded.

* Monies voted to be raised by the inhabitants of a school district, for the erecting of a school-house, may be assessed by assessors chosen after such vote. Pond v. Negus & al. 3 Mass. T.R. 230.

So also the inhabitants of a school district, having voted to raise monies for erecting a school-house, may afterwards, and before the same are assessed, rescind such vote at their discretion. Pond . Negus & al. 3 Mass. T. R. 230.

of the town, who shall record the same; and such land, while owned by any person, residing without the limits of the town, shall be taxed in such district, until such towns shall be districted anew: Provided however, that all the What lands shall be lands within any town, owned by the same person not living therein, shall be taxed in one and the same district.

taxed in the same district.

And the assessors shall assess, in the same manner as town taxes are assessed, on the polls and estates of the Mode of assessment. inhabitants composing any school districts, and on lands in said town, belonging to persons living out of the same, which the assessors shall have directed to be taxed in such district, all monies voted to be raised, by the inhabitants of such district, for the purposes aforesaid, in thirty days after the clerk of the district shall certify to said assessors the sum voted, by the district, to be raised as aforesaid.†

Time of assessment.

warrant for the col

lection of such taxes.

And it shall be the duty of said assessors to make a warrant, in due form of law, directed to one of the collectors Assessors to issue their of the town to which such district belongs, requiring and empowering said collector to levy and collect the tax so assessed, and to pay the same, within a time to be limited in collected, to be paid said warrant, to the treasurer of the town; to whom a certificate of the assessment shall be made by the assessors.

Such taxes, when

into the treasury.

A certificate of the assessment to be made to the treasurer.

† It is not necessary that such assessment be made within thirty days from the date of the certificate of the district clerk; for there are no negative words restraining them from making the assessment afterwards: And accidents might happen, which would defeat the authority, if it could not be exercised after the expiration of thirty days. The naming the time for the assessment must be considered, therefore, as directory to the assessors, and not as a limitation of their authority. By the court, in the case Pond v. Negus. al. 3 Mass. T. R. 230.

So also if an illegal assessment of such monies be made, the same, or succeeding assessors, may make a new assessment, for which purpose, the district clerk may issue a second certificate : For the first certificate may be lost, mislaid, or destroyed by accident before the assessment is made; and it would be unreasonable to decide, that he could not make a second certificate in that case, that the assessors may have, in their possession, a document necessary to justify them in proceeding. By the court, in the case Pond v. Negus & al. 3 Mass. T. R. 230.