Knowles v. City of Boston

129 Mass. 551, 1880 Mass. LEXIS 296

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1880
• Status: Published

Opinion

Soule, J.

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, or a protest by the person paying in writing. Gen. Sts. e. 12, § 56. The plaintiffs recognize this; and it is alleged in the declaration in each action, that the payment was made after a protest by the plaintiff in writing.

It is not alleged, and the evidence offered did not tend to show, that the payment in either case was made after a notice of a sale of the real estate. The statute provides that, when the collector undertakes to levy a tax by sale of the land on which it is assessed, he hall give notice of the time and place of the sale by an advertisement thereof three weeks successively in some newspaper of the county where the estate lies, if there is such newspaper, and if not, then in a newspaper printed in an adjacent county, such advertisement to contain a substantially accurate description of the rights, lots or divisions of the estate to be sold, the amount of the tax on each, the names of all owners known to the collector, and the taxes assessed on their respective lands; and that he shall post, three weeks before the sale, a like notice in some public place in .his precinct, and a like notice on the premises advertised to be sold. Gen. Sts. c. 12, §§ 28, 29, 30. The provision in § 56 that no tax paid to a collector shall be recovered back unless paid after a notice of sale of real estate, refers to the notice thus required to be given before a sale can be lawfully made, the giving of which is the beginning of proceedings for enforcing the payment of the tax. No such notices of sale of the estate of the plaintiffs had been given before they paid their assessments. The paper sent to them was merely a warning from the collector that, unless they paid, it would be his duty to proceed to sell.

The evidence also failed to show that either of the plaintiffs made a protest in writing. The plaintiff Knowles did nothing but make an oral declaration that he paid under protest. The plaintiff Flood made a like oral declaration, and added to it a request to the clerk of the city treasurer to make a note of it. This request did not change the character of the act of Flood, but left his protest a mere oral one, up to this point. It is contended, however, that the protests became written ones by virtue of what the treasurer’s clerk did, in writing the word “protest” in his book, and in writing the words “paid under protest ” on the receipts which he returned to the plaintiffs. These acts of the clerk cannot avail the plaintiffs. He did not act in behalf of the plaintiffs in doing them. He was merely obeying the instructions of his employer to make a note of all protests, oral as well as written. He could not waive the right of the defendant to keep the taxes paid to it, without a protest in writing; and a memorandum made on his book, as a part of his duty to his employer, is not an act, or a writing, or a protest, by the plaintiff. The statement on the receipts is his statement, and not the statement of the plaintiffs, and does not purport 'to declare that the payment was made after a protest in writing; and, if it did, would not estop the defendant to show that it was not true. Judgment for the defendant.