Borland v. City of Boston

• Decision Date: 04 January 1882
• Parties: Melancthon W. Borland v. City of Boston
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

132 Mass. 89

Melancthon W. Borland v. City of Boston

Supreme Court of Massachusetts

January 4, 1882

Argued September 6, 1881; November 4, 1880; February 25, 1881

Essex. Contract to recover the amount of a tax assessed by the defendant city upon the poll and personal property of the plaintiff, on May 1, 1877, and alleged to have been paid by him under a protest in writing. At the trial in the Superior Court, before Aldrich, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions, which appear in the opinion.

The case was argued at the bar in November 1880; and was afterwards submitted on briefs to all the judges.

Exceptions sustained.

E. P Nettleton, for the defendant.

S. B Ives, Jr. & S. Lincoln, for the plaintiff.

OPINION

Lord J.

In this case, two questions are presented for our decision first, Was the tax paid under such a protest in writing as to entitle the plaintiff to recover it back if it had been illegally assessed? and, second, Were the instructions of the presiding judge upon the matter of a change of domicil correct?

The Gen. Sts. c. 12, § 56, provide that "no tax paid to a collector shall be recovered back, unless it appears that it was paid after an arrest of the person paying it, a levy upon his goods, a notice of sale of his real estate, or a protest by him in writing." In the case at bar, the question arises upon the last branch of this provision, namely, whether the tax was paid after a protest in writing. The case finds that before the tax was paid there was written across the face of a tax-bill, which tax-bill was in the usual form, these words: "Both items of this tax are paid under protest, M. Woolsey Borland not being on May 1, 1877, an inhabitant of Boston, nor then having any personal property or income there taxable, and said taxes having been illegally assessed. Boston, April 1st, 1878. M. W. Borland by J. Nelson Borland, Atty."

No objection is made because of the fact that the protest is signed by attorney, nor is any question made of the authority of the attorney, so that it is to be considered as if signed and presented in person by the plaintiff under the same circumstances in which it was actually presented.

Three objections are made to the sufficiency of this as a written protest: First, that it does not appear to have been presented to a proper officer of the city. Second, that it was not, in and of itself, a separate and independent document with such formalities as would attract the attention of the proper officer who should receive it. Third, that it was not left with an officer of the city, but was taken away by the protesting party.

As to the first of the objections, it is said that "the statute requires the delivery of the protest relied upon to some executive or other officer of the city or town." The counsel for the defendant does not, however, designate the officer to whom he contends that it should be delivered; nor does the statute, in express words. Inasmuch as the statute does not state the officer to whom the protest is to be made, we think that by its language there is a strong implication that the protest should be made to the collector, and that, whether a protest made to a different officer would be sufficient or not, a protest properly made by the tax-payer to the collector is sufficient. The language of the statute is, "no tax paid to a collector shall be recovered back, unless it appears that it was paid after . . . . a protest by him in writing." The various other conditions, such as arrest of person, notice of sale of land for nonpayment, or levy upon his goods, must all be within the knowledge and under the direction of the collector, and not necessarily within the knowledge of any other officer of the city; so that the notice given to the collector would place him and the city in the same relation to the subject of knowledge of protest as to every other of the conditions upon which money could be recovered back. A protest in writing to the collector is therefore enough.

Secondly, it is said that the protest which the law requires is a formal, separate and independent document. But the tax-bill by which the tax-payer knows that a tax has been assessed upon his poll and his estate comes from the collector, and the amount of it is to be paid to the collector. It would therefore seem that, to insure certainty and identity, the particular tax-bill which makes claim of the payment of the illegal tax may properly be called to the attention of the collector as identifying the illegal tax; and a protest being written upon it, and as in this case stating "this tax," seems calculated to give more direct, immediate and accurate information of the tax-payer's claim than could be derived from any separate and independent protest, however formal and carefully prepared.

The objection also suggested, that, in the haste of the receipt of taxes by the collector, a protest across the face of the instrument might not be observed by him, applies in our judgment with equal force to any other omission of duty in the collector, like the failure to preserve a separate paper handed to him by the tax-payer immediately before the presentation of his tax-bill and money for the collector's receipt. Indeed, it seems scarcely possible that a collector should take a tax-bill into his hands for the purpose of affixing his own signature to it, and actually affix his signature, without observing the writing across the face of his printed bill. But if it were true that the collector would be less likely to take notice of the protest thus presented, than if it had been presented in some other form, it would be no objection to its sufficiency.

The remaining objection is an objection arising from the fault of the defendant, rather than from that of the plaintiff. The tax-payer has done his whole duty when he has made and presented to the collector a protest in writing against the tax. He cannot be responsible for the disposition of that protest by the officer. The officer may wilfully destroy it. The tax-payer cannot be responsible for that. The collector may carelessly lose possession of it, or he may negligently put it in the wrong place, or deliver it to a wrong person. None of these contingencies can affect the validity of the protest, nor does it make any difference that he carelessly or negligently delivered it to the tax-payer himself. It does not appear that the tax-payer in this case had any agency in causing it to be redelivered to him; nor do we see how in any mode, in the absence of fraud, any dealing with the protest by the collector after he has received the protest in writing, or by the tax-payer after he has performed his whole duty by delivering it to the officer, can affect the rights of the parties.

In the opinion of a majority of the court, the protest offered was rightly admitted in evidence.

The other question raised is upon the correctness of the instructions of the presiding judge upon the question of domicil.

The evidence tended to show that the plaintiff was born in Boston in 1824, and had lived there until June 1876, when he sailed for Europe with his family. He testified that when he left Boston he had definitely formed the intention of not returning to Boston as a resident; that in the fall of 1876 he had decided to make Waterford, Connecticut, his residence, and then formed the intention of purchasing land there, which he bought on May 28, 1877; and that he remained in Europe until 1879, when he returned to this country, and went to Waterford. On this evidence, the judge instructed the jury, "that a citizen, by the laws of this Commonwealth, must have a home or domicil somewhere on the first day of May for the purpose of taxation; that in order to change such home or domicil, once acquired, and acquire a new one, the intention to make the change and the fact must concur; that if the plaintiff, with no definite plan as to the length of time he should remain abroad, and no definite purpose about a change of domicil, went to Europe with his family, that would not effect a change of his domicil from Boston, and he would remain liable to taxation there; but that if he left Boston in 1876 with his family to reside in Europe for an indefinite length of time, with the fixed purpose never to return to Boston again as a place of residence, and with the fixed purpose of making some place other than Boston his residence whenever he should return to the United States, and had in his mind fixed upon such place of residence before May 1, 1877, and remained in Europe until after that time, he was not liable to this tax as an inhabitant of Boston on the first of May of that year; that whether he had done enough to make Waterford his home or not, was not essential in this case, -- if he had lost his home in or ceased to be an inhabitant of Boston at the time, he was not taxable there."

Certainly the latter part of this instruction would be understood to be in conflict with the former; for, not referring now to the words used by the judge, the obvious meaning of the whole sentence is, first, to instruct the jury that a man once having a home here is taxable here until both the purpose to change his home and the fact of changing his home concur; and afterwards to instruct them that, if his intention to make another place his home is formed after he leaves this country, and before the first of May, such intention removes his liability to taxation, even although the fact of change does not concur with the intention. Although there is this obvious inconsistency, it arises partly from inherent difficulties in the case, partly from the impossibility of stating a fixed rule which shall be applicable to all cases, under the...