Whitford, Bartlett & Co. v. Clarke

• Decision Date: 18 July 1911
• Citation: 80 A. 257,33 R.I. 331
• Court: Rhode Island Supreme Court
• Parties: WHITFORD, BARTLETT & CO. v. CLARKE, City Treasurer.

80 A. 257

33 R.I. 331

WHITFORD, BARTLETT & CO.

v. CLARKE, City Treasurer.

Supreme Court of Rhode Island.

July 18, 1911.

Sweetland, J., dissenting.

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Action by Whitford, Bartlett & Co. against Walter L. Clarke, City Treasurer. From a judgment for defendant on a directed verdict, plaintiffs bring exceptions. Sustained.

Bassett & Raymond (R. W. Richmond, of counsel), for plaintiffs. Elmer S. Chace and Albert A. Baker, for defendant.

BLODGETT, J. This is an action for the recovery of a tax against plaintiffs, assessed on personal property by the assessors of the city of Providence for the year 1905, said tax amounting to $990 and claimed by the plaintiffs to have been paid under protest, and is before this court upon the plaintiffs' exceptions to the direction of a verdict for the defendant in the superior court.

It is conceded that the tax in question was illegally assessed under the decision of this court in Matteson v. Warwick & Coventry Water Co., 28 R. I. 570, 68 Atl. 577, in that the time prescribed by said assessors for the making of returns of property liable to taxation on July 1, 1905, was fixed "from the 12th to the 24th day of June, 1905, inclusive, Sunday excepted." The single question presented is as to the sufficiency of the protest of the plaintiffs, who paid the tax on October 20, 1905, under the following circumstances: On that day they sent to the defendant, who is ex officio collector of taxes in the city of Providence, a check in the words and figures following:

"Providence, R. I., Oct. 20, 1905.

"No. 16,771. Industrial Trust Company: Pay to the order of Walter L. Clarke, Treas., $1,521.30, fifteen hundred twenty-one 30/— dollars. Paid under protest. Whitford, Bartlett & Co."

The check was accompanied by the following letter:

"Providence, R. I., Oct. 20, 1905.

"Mr. Walter L. Clark, Treas., Providence, R. I.—Dear Sir: We inclose checks to cover taxes as follows: Check Whitford, Bartlett & Co. tax $ 990 00

William E. Whitford.........366 30

Asel P. Bartlett.................165 00

$1,521 30

"We hereby enter our protest against the assessment and payment of the above lax. * * * Yours truly, Whitford, Bartlett & Co."

On October 21, 1905, the defendant gave to the plaintiffs their tax bill, duly receipted by him and indorsed on its face: "Protest on file."

It is contended by the defendant that this was insufficient, and that a protest in such a case is insufficient, unless it specifies the grounds upon which the protest is based, and certain cases from other jurisdictions are cited in support of this contention. But upon an examination of these we find the following: In Omaha v. Kountze, 25 Neb. 60, 40 N. W. 597, a statute prescribes that the protest "shall particularly state the alleged grievance, and ground thereof." In Davis v. Otoe County, 55 Neb. 677, 76 N. W. 465, a statute provided that the collector must give to the taxpayer who paid under protest "a receipt therefor, stating thereon that they were paid under protest, and the grounds of such protest, whether not taxable, or twice assessed, and taxes paid thereon." In Traverse Beach Ass'n v. Township of Elmwood, 142 Mich. 78, 105 N. W. 30 (1905), the statute then in force (section 3876, Compiled Laws Michigan 1897) required that a taxpayer who paid under protest must so pay, "specifying at the time in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given." In Rogers v. Inhabitants of Greenbush, 58 Me. 390, 4 Am. Rep. 292, the sufficiency of the form of the protest was questioned, but the court declined to determine that question, observing: "We do not think it necessary to determine whether the fact that the plaintiff, at the time he paid, 'protested against said taxes,' is sufficient to answer the requirement of the law that the taxes were paid under protest. * * * In the present case, as the parties desire a decision on the main question, we waive a decision on this question." Meek v. McClure, 49 Cal. 623, also cited by the defendant, appears to support his contention. But it should be observed that the later case of Mason v. Johnson, 51 Cal. 612, is cited by this court in support of the decision in Rumford Chemical Works v. Ray, 19 R. I. 456-460, 34 Atl. 814, 815, which, in the absence of statutory provision, has established the rule in this state. In that case it is said by Matteson, C. J.: "A voluntary payment implies that the man who makes it intends to waive any right which he may have to resist it. When he gives notice by his protest that he does not waive his right, but intends to insist upon it, such Implication is negatived. * * * The defendant also makes the point that the protest is not sufficient, because it does not specify the alleged illegality, and supports it by reference to a criticism in passing by the court upon a similar protest in Railroad Co. v. Commissioners, 98 U. S. 541 . We see no reason for requiring a specification in the protest of the alleged illegality. All the facts connected with the assessment are certainly as fully known to the assessors as to the taxpayer, and they are in as good a position as he is to know whether the tax is legal or illegal. Mason v. Johnson, 51 Cal. 612."

We are accordingly of the opinion that the protest in this case was sufficient, and that the plaintiffs' exceptions must be sustained; and, inasmuch as we understand there is no other question in the case, the defendant may show cause on October 2, 1911, why judgment should not be entered for the plaintiffs.

SWEETLAND, J. (dissenting). This case is before us upon exceptions to the ruling of the justice presiding in the superior court directing a verdict for the defendant.

The payment of the tax in question by the plaintiffs on October 20, 1905, was entirely voluntary. Their real estate had not been levied upon, their personal property was not distrained, no suit for the collection of said tax had been commenced against them, nor had any such suit been threatened. In Dunnell Mfg. Co. v. Newell, 15 R. I. 233, 2 Atl. 766, the court said, in regard to the plaintiff's contention that certain taxes were paid under compulsion, "because they were paid to a collector having a warrant to collect them by levy or distress": "But they were paid before any step was taken or threat made to enforce them by levy or distress. The collector, if the taxes had not been paid, might have proceeded against the corporation by an action at law, in which the corporation would have had full opportunity to contest the validity of the taxes, instead of proceeding by levy or distress. To hold that the payments were compulsory, simply because the collector had his warrant, would be practically to hold that all payments are compulsory, for the collector has no authority to collect without a warrant. We think, therefore, that the taxes paid in 1881, 1882. and 1883 must be taken to have been voluntarily paid, and that they cannot be recovered back." The rule with regard to payments, not alone of taxes, but of any kind, is that, unless otherwise provided by statute, a payment made without coercion, with full knowledge of the facts, cannot be recovered back. The voluntary nature of the payment is not affected by the fact that it is accompanied by a protest. When a payment is made under duress to a party for his own use, a protest is unnecessary; for the right to recover is based upon the duress, and the protest adds nothing to the plaintiff's position. If the payment under duress is made to a public officer, then the person making payment should protest, and in that protest should set out the grounds on which he claims the payment is illegal, in order that the public officer, or that branch of the government to which he is accountable or for which he is acting, may investigate the claim and have an opportunity of returning the money, or not disposing of it, until the claim can be considered, and particularly that a similar illegal claim may not be pressed in the future. Meek v. McClure, 49 Cal. 623. This rule as to the recovery of payments, whether of taxes or otherwise,...