Rumpord Chem. Works v. Ray

• Decision Date: 27 April 1896
• Citation: 34 A. 814,19 R.I. 456
• Parties: RUMPORD CHEMICAL WORKS v. RAY, Town Treasurer.
• Court: Rhode Island Supreme Court

34 A. 814

19 R.I. 456

RUMPORD CHEMICAL WORKS

v. RAY, Town Treasurer.

Supreme Court of Rhode Island.

April 27, 1896.

Action by the Rumford Chemical Works against David S. Ray, town treasurer. Judgment for plaintiff.

Comstock & Gardner, for plaintiff.

Stephen A. Cooke and Edwin P. Allen, for defendant.

MATTESON, C. J. In our former opinion (33 Atl. 443), rendered on demurrer to the declaration, we held that the tax which the plaintiff sues to recover was illegally assessed, and remitted the case to the common pleas division for further proceedings. Certain amendments to the pleadings were subsequently made in that division, and, no jury trial having been claimed, the case was returned to this division for hearing and decision.

The facts appear as follows: On October 19, 1894, the assessors, having completed the assessment, dated, signed, and deposited it in the town clerk's office. The town clerk thereupon made a copy of it, and delivered the copy to the town treasurer. The town treasurer on October 27, 1894, issued and affixed to the copy a warrant, under his hand, directed to George F. Hunter, the collector of taxes of the town, commanding him to proceed to collect the several sums of money expressed in the copy, of the persons and estates liable therefor, on or before the 1st day of June, 1895, with interest at the rate of 6 per cent. per annum from and after November 30, 1894, in case the same were not paid on or before November 30, 1894. Among the sums expressed in the copy of the assessment was the tax illegally assessed against the plaintiff. The collector, on the same day that the warrant was issued to him, to wit, October 27, 1894, gave notice to the taxpayers of the levy and assessment of the tax, and requested them to pay the sums assessed on or before November 30, 1894; that interest at the rate specified would be charged on all taxes not paid within the time limited in the warrant; and that, in compliance with the vote of the town, all taxes not paid on or before June 1, 1895, would be collected according to law. On November 28, 1894, the plaintiff paid the tax assessed against it, accompanying the payment by a written protest in the following form: "To the Town Treasurer and Collector of Taxes of the Town of East Providence: The undersigned, the Rumford Chemical Works, herewith pays the tax assessed on its personal property, amounting to the sum of eight thousand four hundred dollars ($8,400), under protest; claiming that the same was improperly, wrongfully, and illegally assessed against it, and reserving the right to bring suit against the town of East Providence to recover the same, with interest thereon. Rumford Chemical Works, by N. D. Arnold, Treas. East Providence, November 28, 1894."

The defendant contends that the plaintiff is not entitled to recover, because the payment is to be deemed a voluntary payment, since it was made with a full knowledge of the facts which render it illegal, and without any immediate or urgent necessity,—no proceeding having been taken by the collector for the collection of the tax, and notice having been given by him that he would take no such proceedings until after June 1, 1895; that the fact that the payment was accompanied by a protest did not render it any the less a voluntary payment There is considerable diversity of opinion on the subject of the recovery of moneys paid for taxes illegally assessed. The cases turn on the question whether, in the particular circumstances of the case, the payment was to be regarded as voluntary or involuntary; some courts holding that unless a payment be made under an immediate or urgent necessity, i. e. to avoid an actual or threatened seizure or sale of one's...