Whitford, Bartlett & Co. v. Clarke

80 A. 257, 33 R.I. 331, 1911 R.I. LEXIS 110

• Court: Supreme Court of Rhode Island
• Decided: July 15, 1911
• Status: Published

Opinions

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, 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. 16771

INDUSTRIAL TRUST COMPANY

Pay to the order of Walter L. Clarke Treas $1521.30

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 enclose 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 tax.” . . .

“Yours truly,

Whitford Bartlett & Co.”

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

(1) 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, a statute prescribes that the protest “shall particularly state the alleged grievance and ground thereof.” In Davis v. Otoe County, 55 Neb. 677, 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 (1905), the statute then in force (Sec. 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, 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, which, in the absence of statutory provision, has established the rule in this state. In that case it is said by Matteson, C. J. (p. 459): “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, ’ ’ and on p. 460: ‘ ‘ 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 plaintiff’s 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.