# Hann v. Merrill > Supreme Judicial Court of Maine · May 24, 1973 · 305 A.2d 545 URL: https://www.frixlaw.com/law-library/cases/9764176 ## Case - **Full name:** Iva Hunnewell HANN v. Robert D. MERRILL Et Al.; Iva Hunnewell HANN v. Ralph L. POLAND Et Al. - **Court:** Supreme Judicial Court of Maine - **Decided:** May 24, 1973 - **Citations:** 305 A.2d 545 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Dufresne, Web-Ber, Weatherbee, Pomeroy, Wernick, Archibald - **Cited by:** 22 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764176 ## Opinion text On Motion for Reconsideration This opinion is supplemental to our opinion filed on July 25, 1972. On August 7, 1972 the Defendants-Appellants moved for reconsideration of the opinion. Briefs respecting the issue raised by the motion were filed by counsel for both sides. The issue presented by the Defendants-Appellants concerns the effect which should be given to 36 M.R.S.A. § 943 and the common law presumption of regularity of acts of public officers. It will be recalled that the Defendants-Appellants claimed title to certain real estate by virtue of deeds from the town of Poland. The Defendants-Appellants contend that the town had acquired title through the foreclosure of liens placed upon the property by the Tax Collector for three years’ unpaid taxes. The Plaintiff-Appellee was the owner of the property at the time the taxes were assessed. The dis-positive issue before the Justice in the Superior Court was the validity of the appointment of the Tax Collector. The Justice ruled adversely to the Defendants-Appellants, holding that the Tax Collector had acted de facto but that he did not hold his office de jure. The Defendants-Appellants appealed. We denied the appeal, pointing out that P.L.1957, ch. 405, § 36, §§ II (now 30 M. R.S.A. § 2060, §§ 2) requires that the appointment of town officials be in writing and holding that in the case of Tax Collectors this was a “matter of substance” and that therefore this officer did not hold his office de jure unless his appointment was in writing. We held that the Justice’s finding that the procedures followed by the Selectmen fell short of constituting valid appointments to that office was not clearly erroneous. The Defendants-Appellants now urge us that we inaccurately applied the substantive law relative to presumptions, particularly R.S.1954, ch. 92, § 99 as amended by P.L.1955, ch. 399, § 1 (which is now 36 M. R.S.A. § 943) which reads in part: “The tax lien mortgage shall be prima facie evidence in all courts in all proceedings by and against the municipality, its successors and assigns, of the truth of the statements therein and after the period of redemption has expired, of the title of the municipality to the real estate therein described, and of the regularity and validity of all proceedings with reference to the acquisition of title by such tax lien mortgage and the foreclosure thereof.” (Emphasis supplied.) The Defendants-Appellants argue that neither the prima facie effect created by the statute nor the common law presumption of regularity in the acts of public officials can be overcome by an inference. In our opinion of July 25, 1972 we discussed the effect of this statute and held that an inference that there was no appointment in writing could be drawn from evidence thus overcoming the statutory pri-ma facie proof regularity. The Defend *552 ants-Appellants contend that we did not give sufficient consideration to the effect of the statute and the common law presumption. Further consideration of this matter has led us to the conclusion that, in the posture in which the parties stood, the Defendants-Appellants actually derive no benefit from this statute and that we originally gave it more significance than it deserves. Our Court has frequently recognized the use of disputable presumptions 1 and prima facie evidence, sometimes using the terms interchangeably, and without indicating any distinction in the use of these procedural devices. We must reexamine our use of these terms. We have several times discussed the nature of presumptions. In Kittery Electric Light Co. v. Assessors of the Town of Kittery, Me., 219 A.2d 728, 743 (1966) we said: In Hinds v. John Hancock Ins. Co., 155 Me. 349 , 155 A.2d 721 , 85 A.L.R.2d 703 , we established the use to be made of rebuttable presumptions. They are not ‘evidence’ in the scales with weight to be ‘overcome’. Rebut-table presumptions are rather merely procedural devices in the trial of a case, which have the effect of shifting to the other party, not the burden of proof, but the burden of going forward with evidence.” In Manchester v. Dugan, Me., 247 A.2d 827, 829 (1968) we compared the nature of presumptions with that of inferences: “The words ‘presumption’ and ‘inference’ are often used synonymously but a distinction exists. A presumption is a conclusion which a rule of law directs shall be made from proof of certain facts but an inference is a deduction which reason and logic dictates shall be made from a fact situation. An inference is a deduction as to the existence of a fact which human experience teaches us can reasonably and logically be drawn from proof of other facts. An inference must be based on probability and not on mere possibilities or on surmise or conjecture and must be drawn reasonably and supported by the facts upon which it rests. . . . ” We pointed out in Hinds v. John Hancock Mut. Life Ins. Co., 155 Me. 349, 354 , 155 A.2d 721, 726 (1959) that disputable presumptions are mandatory. That is, it may be declared legislatively or judicially that proof of certain fact-groupings results in proof of a certain presumed fact as a matter of law — if no contrary evidence is offered. While many courts speak of permissible presumptions — that is, presumptions which the jury is permitted to draw but not compelled to draw — we have concluded that, at least when used in criminal cases, the device is better described as an inference of fact. State v. Poulin, Me., 277 A.2d 493, 498 (1971); State v. Collamore, Me., 287 A.2d 123, 125 (1972). The effect of both the disputable mandatory presumption and the permissible presumption or inference of fact is to get “to the jury” the proponent who relies upon them. 2 C. McCormick, Law of Evidence, §§ 308, 310 (1954). Both are disputable. *553 The mandatory presumption shifts the burden of going forward with evidence to dispute the claimed fact to the other party. If the mandatory presumption is not rebutted, it is the duty of the trier of the fact to accept the presumed fact as proved. On the other hand, the inference of fact which human experience has taught us may reasonably and logically be drawn from proof of certain other facts will serve to get the proponent “to the jury” but the jury may find that those particular facts as presented, even if undisputed, do not justify a drawing of the inference from those facts or the jury may find that the inference has been overcome by the presentation of disputing facts. If evidence is presented which disputes the effect of the mandatory presumption the procedural rule announced in Hinds operates and the presumption persists until the contrary evidence persuades the fact finder that the balance of probabilities is in equilibrium. Hinds v. John Hancock Mut. Life Ins. Co., supra, 155 Me. at 364 , 155 A.2d at 730 . The presumption of regularity of the acts of public officers is a disputable mandatory presumption. Kellar v. Savage, 20 Me. 199, 203 (1841). The phrase “prima facie evidence” requires further examination. In using the phrase “prima facie evidence” in this section, did the Legislature intend to create an entirely new device which has an office distinct from that of either a disputable mandatory presumption or an inference of fact ? Black’s Law Dictionary, 1353 (4th ed. 1951) defines prima facie evidence as “Evidence good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party’s claim or defense, and which if not rebutted or contradicted, will remain sufficient. The words “prima facie evidence” appear frequently in both our statutes and our decisional law. For example, in The Inhabitants of Augusta v. The Inhabitants of Vienna, 21 Me. 298 (1842) it was held that where a statutory notice which was required preliminary to liability for removal of a pauper had been deposited in the mails timely and had been received, this was “prima facie evidence” that its receipt was also timely. The Court said the result was a “presumption” of timeliness which might be overcome by evidence. The deposit of a letter, properly addressed, and stamped in the post office, has been held to be “prima facie evidence” of its receipt by the addressee by due course of mail but this principle was held not to apply when the evidence showed the letter was not in fact so received. Chase v. Inhabitants of Surry, 88 Me. 468 , 34 A. 270 (1896). See also Ross v. Reynolds, 112 Me. 223, 225-226 , 91 A. 952, 953 (1914). Our Court has often stated that a violation of the law of the road is “prima facie evidence” of negligence on the part of the violator. “ . . . It does not establish absolutely the defendant’s liability. But, nothing else appearing, it sustains the burden of proving the defendant’s negligence, which burden primarily rested upon the plaintiff. It creates a presumption in favor of the plaintiff which the defendant must overcome if he would prevail.” Dansky v. Kotimaki, 125 Me. 72, 74 , 130 A. 871, 873 (1925). See also Bennett v. Lufkin, 147 Me. 216, 218 , 85 A.2d 922, 923 (1952); Elliott v. Montgomery, 135 Me. 372, 374 , 197 A. 322, 323 (1938); Callahan v. Amos D. Bridges Sons, Inc., 128 Me. 346, 348 , 147 A. 423, 424 (1929). The Court used “prima facie evidence” and “presumption” interchangeably in these cases and was describing a procedural device which, for policy reasons, had been judicially established and which (although not evidence to be weighed by the jury), entitled the party making use of it to a de *554 termination of negligence as a matter of law (not eliminating the necessity of proof of causation, of course) unless there was evidence introduced from which the jury could find that the conduct of the other party, although in violation of the law, was not in fact negligent conduct. In Rand v. Skillin, 63 Me. 103, 104 (1873) we reasserted the rule that “a warranty deed to the plaintiff, or a warranty deed to one from whom the plaintiff has a quit claim deed, is sufficient prima facie evidence of ownership, and will authorize a verdict for the plaintiff, unless the defendant proves a better title.” A similar effect was given to the phrase “prima facie evidence” in the statute which was the predecessor of the paragraph of 36 M.R.S.A. § 943 which is now under consideration. In 1936 that statute provided that in a trial involving the validity of any sale of real estate for non-payment of taxes, • it shall be sufficient for the party claiming under it, in the first instance, to produce in evidence the collector’s or treasurer’s deed, duly executed and recorded, which shall be prima facie evidence of his title . . ..” R.S.1930, ch. 14, § 87. In City of Old Town v. Thomas, 134 Me. 285, 289 , 186 A. 663, 665 (1936) the plaintiff City presented such deeds and also the formal return of the tax sale by which the City claimed the owner had been divested of his title. The return had not been signed by the officer, in violation of a statutory mandate. The defendant offered no evidence. The Court rejected the City’s contention that as the tax deed made out a prima facie case and as the defendant had offered no evidence, the City was entitled to judgment, holding that the “pri-ma facie showing” of the tax deeds had been “overcome” by the City’s own production of the defective return. We turn now to the use of the phrase “prima facie evidence” in the statute now under consideration. We believe that the Legislature’s purpose was to enable municipalities and litigants claiming title through municipalities to avoid the expensive and time consuming proof of the correctness of every step involved in a municipality’s acquisition of title by the tax lien process. The statute is based on what Professor Torcía calls “procedural expediency”. 1 C. Torcia, Wharton’s Criminal Evidence 144 (13th ed. 1972). The Legislature was no doubt familiar with the Court’s interpretation of the effect of the use of the phrase “prima facie evidence” in other statutes and concluded that the phrase, as so interpreted, would accomplish the purpose of 36 M.R.S.A. § 943. McLellan v. Lunt, 14 Me. 254, 258 (1837). We are convinced that the statute was intended to create only a procedural device in the nature of a mandatory rebut-table presumption which, in lieu of presentation of evidence as to regularity by the party claiming regularity, was intended to shift the burden of going forward with evidence as to regularity upon the party claiming irregularity. The common law presumption of regularity of the actions of public officials has the same effect. Both are procedural devices. Neither is evidence. With this understanding of the true nature of the statutory device and its resemblance to a mandatory rebuttable presumption, it becomes clear that neither has significance in this case. We said in Kittery Electric Light Co. v. Assessors of the Town of Kittery, supra, 219 A.2d at 743 : “. . . A party however has no need of the aid of rebuttable presumption in order to shift the burden of going forward with evidence to an opponent who already has been charged from the outset with the burden of proof or persuasion with respect to a particular issue. As was stated in 20 Am.Jur. Evi *555 dence, § 157: ‘During the trial of an action, the party who has the burden of proof upon an issue may be aided in establishing his claim or defense by the operation of a presumption, ... a presumption may operate to relieve a party of the duty of presenting evidence until his adversary has introduced proof to rebut the presumption.’ [Emphasis supplied]. In the instant case, the plaintiff taxpayer had the burden of proof from the beginning; this necessarily included the subsidiary burden of going forward with evidence. There was no occasion for the Justice below to advert to the presumption of validity attaching to the acts of public officials since that presumption could do no more than cast upon the plaintiff taxpayer a burden which it had already assumed.” Here the Plaintiff maintained that she still had title to the property because of an irregularity in the town’s claimed acquisition of title through the tax lien procedure. Neither the statute nor the presumption shifted the burden of going forward to her —she had the burden of proof of irregularity from the beginning. The measure of her burden was proof by a fair preponderance of the evidence. Therefore, it is not necessary for us to consider whether the Legislature intended that the effective weight of the device should disappear when “contrary evidence persuades the factfinder that the balance of probabilities is in equilibrium” (Hinds v. John Hancock Mut. Life Ins. Co., supra, 155 Me. at 364 , 155 A.2d at 730 (1959) or when some other quantum of credible contrary evidence is received. Any expression of opinion as to this would be dicta and particularly undesirable as this precise issue was not argued. In our opinion of July 25, 1972 we discussed the evidence presented as to the manner in which the Selectmen purported to appoint the Town Manager to the office of Tax Collector. It can be fairly stated in summary that the evidence showed that while the employment of the Town Manager was by means of an annual written contract it was “understood” and mutually agreed that he should also serve as Tax Collector. One Selectman agreed that “technically” the Town Manager wasn’t “appointed” but it was “the understanding” that he should also serve in that capacity. Near the close of the trial after a great deal of evidence had been presented as to the informal manner in which the Tax Collector was appointed, the Justice inquired if the manner of the Town Manager’s appointment could not be stipulated and Defendants-Appellants’ counsel replied, “I can stipulate that the only provisions made are as brought out in the direct testimony and contained in the minutes.” From the abundance of direct testimony as to the manner in which the appointment was made and from the minutes an inference could properly be drawn that it was not made in writing. The Justice could have found that by means of this inference the Plaintiff satisfied her burden of proof. Our reconsideration has satisfied us that the entry on Defendants-Appellants’ motion must be: The opinion of July 25, 1972 shall stand. . We are not concerned here with conclusive mandatory presumptions. Examples of conclusive mandatory presumptions would be the judicially created conclusive presumption that a child under the age of 7 years is incapable of criminal guilt (Allen v. United States, 150 U.S. 551, 558 , 14 S.Ct. 196, 198 , 37 L.Ed. 1179, 1181 (1893); 1 R. Anderson, Wharton’s Criminal Law and Procedure, § 35) and the statutory conclusive presumption that certain persons are wholly dependent for support upon a deceased employee under our Workmen’s Compensation Act. 39 M.R.S.A. § 2; Albee’s Case, 128 Me. 126 , 145 A. 742 (1929). . Of course, if there is no other disputed issue of fact the party who has the benefit of an unrebutted mandatory presumption may be entitled to a directed verdict in a civil action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764176. Public record. Not legal advice.