Wheatland v. City of Boston

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: SHELDON
• Citation: 202 Mass. 258,88 N.E. 769
• Decision Date: 22 May 1909
• Parties: WHEATLAND v. CITY OF BOSTON.

202 Mass. 258
88 N.E. 769

WHEATLAND
v.
CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1909.

Report from Superior Court, Suffolk County.

Action by George Wheatland against the City of Boston. On report from the superior court. Judgment for defendant.

Matthews, Thompson & [202 Mass. 258]Spring, for plaintiff.

Arthur L. Spring, Asst. Corp. Counsel, for defendant.

SHELDON, J.

The plaintiff's suit was brought more than seven months after the last one of the payments made by him to the defendant on account of the assessments laid by the street commissioners for the construction of Ivy and Mountfort streets. It is provided by Rev. Laws, c. 13, § 86, as follows: ‘No action to [202 Mass. 259]recover back a tax shall be maintained, except as provided in section 73, unless it is commenced within three months after payment of the tax nor unless such tax is paid either after an arrest of the person paying it, a levy upon his goods, a notice of a sale of his land, a protest in writing signed by him, or a withholding of money due to him under the provisions of section 81.’ The defendant contends that by reason of this statutory inhibition the action cannot be maintained.

It is to be observed that this is not a mere statute of limitations. It establishes certain conditions precedent to the maintaining of an action to recover back a tax. One of these is in substance that the payment must have been made under protest or under certain modes of compulsion mentioned in the statute; the other is that the suit shall have been brought within the time specified. Compliance with the latter of these conditions is no less essential to the right of action than compliance with the former. In this respect the statute is like that considered in McRae v. New York, New Haven & Hartford R. r., 199 Mass. 418, 85 N. E. 425. And this consideration is fatal to the plaintiff's case, unless we can adopt his contention that the statute does not apply to the prosecution of his claim. He rests this contention upon two grounds: First, that the provisions of the statute are not applicable to any tax or assessment which was laid under an unconstitutional statute, and must be regarded as merely void; and secondly, that special assessments, such as are here in question, are not taxes within the meaning of that word as used in this statute.

1. The plaintiff's first claim is that the statute imposes conditions upon the bringing of actions in which it is sought to recover back taxes which are invalid by reason of some irregularity in the assessment, or because the person from whom the collection was made was not bound to pay the tax by reason of non-residence, or because some one of the purposes for which the tax was levied was improper, or by reason of some other similar irregularity. But he claims that a tax levied under an unconstitutional statute, being merely void, is no tax at all, and accordingly does not come within the words of a statute which provides for the collection of taxes and regulates the [202 Mass. 260]right to recover back taxes which have been collected without right. But exactly the contrary of this contention was held in principle in Barrett v. Cambridge, 10 Allen, 48. The plaintiff in that case sought to recover back the amount of an assessment laid upon him for the grading of a street under a statute which was afterwards adjudged to be unconstitutional. He had paid the assessment upon demand to avoid proceedings against his property, although no process had then issued. It was

[88 N.E. 770]

held that he could not maintain his action because his payment must be deemed to have been voluntary under the laws regulating the collection of taxes. This was accordingly in reality an adjudication that the laws regulating the recovery back of a tax were applicable to a suit for the recovery of a 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 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 the matter, and was as truly void as if it had been laid without any...