Knowles v. City of Boston
| Decision Date | 21 October 1880 |
| Citation | 129 Mass. 551 |
| Parties | Jacob L. Knowles v. City of Boston. Patrick M. Flood v. Same |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk. The first case was an action of contract to recover the amount of a betterment tax assessed by the board of aldermen of the city of Boston upon the real estate of the plaintiff on October 7, 1872, for the widening and extension of Shawmut Avenue in said city, and alleged to have been paid by the plaintiff after a protest by him in writing. Trial in the Superior Court, without a jury, before Pitman, J., who found the following facts:
In September 1873, the following notice in writing was sent to the plaintiff by the treasurer of the defendant city "Having duly made demand for the payment of the assessment made upon your estate, numbered 283 Shawmut Avenue, by the board of aldermen, for the benefit and advantage accruing to your said estate, for widening and extending of Shawmut Avenue, and the same remaining unpaid it becomes my duty to enforce payment by sale of your said real estate if not paid forthwith.
"F U. Tracy, City Treasurer."
The plaintiff soon after went to the treasurer's office, and paid the assessment, saying to the clerk that he paid it under protest, and receiving from him the treasurer's receipt, having upon it the words "paid under protest" written by the clerk at the time of payment. The plaintiff put in evidence an account book of the city treasurer, in which were entered payments of betterments as made from time to time, and among them an entry of this payment with the word "protest" written over and in connection with the name of the plaintiff. He also called S. A. Cushing, a former clerk of the city treasurer, who testified that the treasurer had instructed him to make a note of all protests, whether written or oral, made when taxes were paid; that pursuant to this instruction he wrote the word "protest" in said book, as above stated, at the time of payment, and the words "paid under protest" on the receipt which he returned to the plaintiff; that he did not remember any of the circumstances attending this particular payment, but he should not have written the word "protest" in the book, nor the words "paid under protest" upon the receipt, unless the party paying had protested either orally or in writing.
The second case differed from the first only in the fact that the plaintiff, at the time he paid the tax and told the clerk that he paid it under protest, added that he wished him to make a note of it.
In each case, the judge found for the plaintiff, and reported the case for the determination of this court; judgment to be entered accordingly, or for the defendant, as law and justice might require.
Judgment for the defendant.
E. P. Nettleton, for the defendant.
C. K. Fay, for the plaintiffs.
The assessment in each case was invalid, because made by the board of aldermen instead of by the street commissioners. Bigelow v. Boston, 123 Mass. 50. The assessment was merely the assessment of a local tax for a local benefit. Harvard College v. Boston 104 Mass. 470. Prince v. Boston, 111 Mass. 226. The amount paid cannot, however, be recovered back, unless it appears that it was paid after a notice of a sale of the real estate,...
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Wynn v. Bd. of Assessors of Boston
...within the time prescribed, and one other of several conditions precedent must be complied with. G. L. (Ter. Ed.) c. 60, § 98. Knowles v. Boston, 129 Mass. 551. Bringing in a list, however, is not one of those conditions, and an illegal tax may be recovered back in such an ‘action’ even if ......
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Wheatland v. City of Boston
...like that which is now before us levied under an unconstitutional statute. The same principle was applied in Knowles v. Boston, 129 Mass. 551. The assessment in that case was not indeed laid under an unconsitutional statute, but it was imposed by a board which had no jurisdiction to act in ......
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Wheatland v. City of Boston
...special assessment like that which is now before us levied under an unconstitutional statute. The same principle was applied in Knowles v. Boston, 129 Mass. 551. The assessment that case was not indeed laid under an unconsitutional statute, but it was imposed by a board which had no jurisdi......
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Wynn v. Board of Assessors of the City of Boston
...the time prescribed, and one other of several conditions precedent must be complied with. G.L. (Ter. Ed.) c. 60, Section 98. Knowles v. Boston, 129 Mass. 551 . Bringing in list, however, is not one of those conditions, and an illegal tax may be recovered back in such an "action" even if no ......