G. L. c. 60, 98]

real estate in the same city or town properly subject to general taxation.20

26

When there has been an over-valuation of a parcel of land, and the land is sold after the date as of which the tax is assessed but before it is paid, the purchaser is without any means to secure a reduction of the tax, for he cannot maintain an action of contract to recover back the portion of the tax attributable to the over-valuation 27 since such an action is not the remedy for over-valuation and he cannot apply for an abatement, because not being the person assessed he is not a person aggrieved within the meaning of the statute.28

ACTION AT COMMON LAW IN CASE OF INFORMALITY

The action of contract to recover back a tax furnishes a convenient remedy when the assessment has not been made in accordance with law. A taxpayer is not however necessarily entitled to have a tax declared invalid and to recover it back from the city or town because every provision of the statutes relating to the assessment of taxes was not complied with. All those provisions which are intended for the security of the citizen, for securing an equality of taxation and to enable everyone to know with reasonable certainty for what polls and for what real and personal estate he is taxed, and for what all those who are liable with him are taxed are mandatory. They are conditions precedent to a valid tax and if they are not observed the citizen is not legally assessed. But many regulations are made by statute, designed for the information of the assessors and other officers and intended to promote method, system and uniformity in the modes of procedure, the compliance or noncompliance with which in no respect affects the rights of taxpaying citizens. These may be considered merely directory, and the non-compliance with them does not make the tax invalid.29 If the illegality affects only part of the assessment, as when the tax is levied in part to raise 26 Dexter v. Boston, 176 Mass. 247 (1900); Smith v. Boston, 194 Mass. 31 (1907).

27 Sullivan v. Boston, 198 Mass. 119 (1908).

28 Dunham v. Lowell, 200 Mass. 468 (1909).

29 Torrey v. Millbury, 21 Pick. 64 (1838). See also, Sprague v. Bailey, 19 Pick. 436 (1837); Tobey v. Wareham, 2 Allen 594 (1861); Westhampton v. Searle, 127 Mass. 502 (1879); Noyes v. Hale, 137 Mass. 266 (1884); Bemis v. Caldwell, 143 Mass. 299 (1887).

[G. L. c. 60, § 98 money for unauthorized purposes, the taxpayer can recover only the illegal excess.30 When however there is no lien on a piece of real property or the lien has expired and the collector by mistake in his rights threatens to enforce the payment of a tax assessed upon a former owner of the property by a sale of the property, one who has purchased it since the assessment may instead of resisting the collector or resorting to other remedies pay the tax under written protest and bring suit to recover the amount paid.31 This result has been reached as an inference from the statute relating to payment under protest and it seems a just conclusion; for a person so threatened is not permitted to apply for an abatement of a tax which was not assessed upon him and unless he may protect himself in this way he must run the risk of letting the estate be sold and having the sale subsequently declared invalid; but when a person who has been legally assessed is compelled to pay the tax by unlawful methods employed by the collector he cannot recover the tax in an action of contract against the city or town.32

PAYMENT UNDER DURESS OR PROTEST

Upon general principles of common law it was early held that a person who voluntarily paid an illegal tax could not maintain an action to recover it back, even though he paid it under protest;33 but that a person who had paid a tax to a collector upon demand when the collector held a warrant authorizing him to seize the goods or arrest the body of the person on whom the demand was made and such person had no opportunity to contest the validity of the warrant in court before it was executed, could not be said to pay voluntarily, and, if the tax was invalid, might maintain an action to recover it back, whether it was paid under protest or not.34

In 1859 the statute was enacted which in substance now stands as the first sentence of section ninety-eight.35 The effect

30 G. L. c. 59, § 82, supra page 311.

31 McGee v. Salem, 149 Mass. 268 (1889).

32 Dunbar v. Boston, 112 Mass. 75 (1873).

33 Benson v. Monroe, 7 Cush. 125 (1851); Lee v. Templeton, 13 Gray 476 (1859); Cunningham v. Boston, 15 Gray 468 (1860); Cook v. Boston, 9 Allen 393 (1864).

34 Preston v. Boston, 12 Pick. 7 (1831); Boston & Sandwich Glass Co. v. Boston, 4 Met. 181 (1842); George v. School District in Mendon, 6 Met. 497, 506 (1843); Joyner v. School District in Egremont, 3 Cush. 567, 572 (1849).

35 St. 1859, c. 118.

G. L. c. 60, § 98]

of this statute was to limit the effect of payment on the demand of a collector who held a warrant so that the payment would be thereafter deemed voluntary unless the proceedings to enforce payment had actually begun; but to make a protest in writing equivalent to actual duress and in all cases sufficient basis for action. After the passage of the statute a person who paid without protest and before steps had been taken by the collector to enforce payment had no standing in court; 36 but a person who paid under protest on the collector's demand might recover back the tax although he was not included in the collector's warrant, and apart from the statute could not maintain the action on account of the absence of duress.37

The protest must be made in writing by the person paying the tax, and an oral protest is not validated by the action of the collector in inscribing it upon his records.38 Payment "after protest" is accomplished by handing the collector the amount of a tax and a written protest simultaneously 39 or by writing the protest across the face of the tax-bill and handing it to the collector.40

The provision in regard to protest and the requirement that action be brought within three months of payment protects a city or town from sudden and unexpected assaults upon its financial structure, by rendering it certain that money paid without protest and allowed to remain in the treasury without objection for a definite period cannot be recalled. The statute is a beneficial one and has been liberally construed. Compliance with its requirements is a condition precedent to a right of action; its provisions extend to special assessments as well as to general taxation, and apply to a tax levied under an un

42

36 Barrett v. Cambridge, 10 Allen 48 (1865); Knowles v. Boston, 129 Mass. 551 (1880).

37 McGee v. Salem, 149 Mass. 238 (1889).

38 Knowles v. Boston, 129 Mass. 551 (1880).

39 Carleton v. Ashburnham, 102 Mass. 348 (1869).

40 Borland v. Boston, 132 Mass. 89 (1882); Thayer Academy v. Braintree, 232 Mass. 402 (1919).

41 Wheatland v. Boston, 202 Mass. 258 (1909). The requirement of protest does not apply however when the tax is paid by one having an interest in the property to protect his interest, and the owner of the fee repays him. In such case if the tax is illegal the owner of the fee may sue to recover it back, although the original payment was not under protest. G. L. c. 60, § § 60, 85, supra, pages 370, 391.

42 Barrett v. Cambridge, 10 Allen 48 (1865); Knowles v. Boston, 129 Mass. 551 (1880); Wheatland v. Boston, 202 Mass. 258 (1909).

43

[G. L. c. 60, § 98 constitutional statute as well as to one that is invalid on other grounds. The statute has however no application to the statutory proceeding in the superior court in the nature of an appeal from the refusal of the assessors to abate a tax, and a tax may be recovered under such proceedings although not paid under protest and although the proceedings were not instituted until more than three months after payment of the tax.**

ACTION OF TORT AGAINST THE CITY OR TOWN

This subject is easily disposed of. A city or town is not liable in an action of tort for the conduct of its assessors in wrongfully assessing a tax upon an individual not subject to taxation by them, and of its collector for arresting the person so taxed or seizing and selling his property to enforce payment of the tax. The assessors and collector though elected by the inhabitants of the town are not the agents of the town for whose actions it is responsible, but public officers whose duties are prescribed by law. The remedy of recovering back the amount of the tax by action of contract is considered sufficient; and if a person wrongly assessed is put to inconvenience and additional expense by the action of the collector in enforcing the tax, it is a consequence that he might have avoided by paying the tax under protest and suing to recover it back."7

46

BILL IN EQUITY

In many jurisdictions a recognized method of contesting the validity of a tax is to bring a bill in equity to enjoin its collection, and if any recognized ground of equitable jurisdiction can be shown the court will entertain the proceeding. In some jurisdictions the inequality in the relative positions of the taxpayer and the collector is deemed in itself ground for equitable interference. In this commonwealth however the remedies at law by petition for abatement and action of contract are considered

43 Barrett v. Cambridge, 10 Allen 48 (1865); Knowles v. Boston, 129 Mass. 551 (1880); Wheatland v. Boston, 202 Mass. 258 (1909).

44 Thayer Academy v. Braintree, 232 Mass. 402 (1919).

45 Shaw v. Becket, 7 Cush. 442 (1851); Alger v. Easton, 119 Mass. 77 (1875); Hathaway v. Everett, 205 Mass. 246 (1910).

46 Rossire v. Boston, 4 Allen 57 (1862); Dunbar v. Boston, 112 Mass. 75 (1873); Alger v. Easton, 119 Mass. 77 (1875); Hathaway v. Everett, 205 Mass. 246 (1910).

47 Shaw v. Becket, 7 Cush. 442 (1851).

G. L. c. 60, § 98]

48

49

plain and adequate, and it is well settled that a bill in equity will not lie to enjoin the collection of a tax on the ground that it has been illegally assessed, whether brought against the city or town, or the collector. The prompt and unembarrassed collection of taxes is considered of more importance than a possible inconvenience to one or more citizens. The possibility of a multiplicity of suits is no ground for modifying this well established rule.50 The court will not inquire into the validity of a tax in a proceeding in equity.

Even when two towns have assessed the same person for the same property he is left to his remedies at law, and the court will not entertain a bill in equity in the nature of a bill of interpleader to determine in which town the tax should properly have been assessed, even with the consent of the towns interested.51

When however a tax collector in enforcing payment of a tax attempts to go wholly beyond the limits of his jurisdiction and to interfere with the person or property of the person assessed in a manner not warranted by the statutes, if there is no adequate remedy at law and grounds for the interposition of equitable relief appear, it is possible that the court might grant injunctive relief.52

PETITION FOR WRIT OF MANDAMUS

There is little occasion in this commonwealth to employ the writ of mandamus to enforce the performance of duties arising under the laws relating to the assessment and collection of taxes.

The writ is issued to compel the performance of an

48 Brewer v. Springfield, 97 Mass. 152 (1867); Loud v. Charlestown, 99 Mass. 208 (1868); Whiting v. Boston, 106 Mass. 89 (1870); Hunnewell v. Charlestown, 106 Mass. 350 (1871); Norton v. Boston, 119 Mass. 194 (1875); Clark v. Worcester, 167 Mass. 81 (1896).

49 Kelly v. Barton, 174 Mass. 396 (1899); Greenhood v. MacDonald, 183 Mass. 342 (1903); Webber Lumber Co. v. Shaw, 189 Mass. 366 (1905); Warr v. Collector of Taunton, 234 Mass. 279 (1920).

50 Greenhood v. MacDonald, 183 Mass. 342 (1903).

51 Macy v. Nantucket, 121 Mass. 351 (1876); Welch v. Boston, 208 Mass. 326 (1911). See, however, Hardy v. Yarmouth, 6 Allen 277 (1863), and Forest River Lead Co. v. Salem, 165 Mass. 193 (1896), in which such bills were allowed when no objection was taken.

52 Warr v. Collector of Taunton, 234 Mass. 279 (1920). A bill in equity will not lie against a city or town to recover a sum of money paid as a necessary consequence of an illegal tax sale. Clark v. Worcester, 167 Mass. 81 (1896).