124 of article 23 of the Code, relied upon | to recover them back if the taxes were illegally by the defendant, in the court below and by assessed. the appellant here, has no application to the facts of this case.

This statute was before this court for construction in Commercial Association v. Mackenzie, 85 Md. 132, 36 Atl. 754, and in Chipman v. Far. & Mer. Nat. Bank, 121 Md. 354, 88 Atl. 151, and what was said in those cases is conclusive on this appeal, and renders a further discussion of the questions

Supreme Court has no jurisdiction to grant trial of case defaulted in district court, upon petition therefor under Gen. Laws 1909, c. 297, 81, where petition was filed more than one year after the default.

Action by Pasquale Pontarelli against Mrs. Paolo Biello. Default judgment for plaintiff, and defendant petitions for a trial under Gen. Laws 1909, c. 297, § 1. Petition denied, and dismissed.

Joseph Veneziale, of Providence, for petitioner.

Bennie Cianciarulo, of Providence, for respondent.

2. TAXATION 543(4)—ILLEGAL ASSESSMENT -PAYMENT UNDER PROTEST RECOVERY PERSONS LIABLE.

3. APPEAL AND ERROR 1078(1)—QUESTIONS REVIEWABLE-ARGUMENT.

A question not directly discussed in his brief by defendant, but argued by his counsel, may be considered by the Supreme Court.

4. TAXATION 542-ILLEGAL ASSESSMENTRECOVERY BACK-GENERAL PROTEST.

The payer to a town of taxes illegally assessed, who merely protested as evidenced by the receipts issued by the town collector bearing the words "paid under protest," but did not specify with reasonable certainty the defect or error on which his protest was based, could not recover back the illegally assessed taxes so paid.

Exceptions from Superior Court, Kent County; Edward W. Blodgett, Judge.

Action by Almon C. Albro against Samuel Kettelle, Treasurer of the Town of West Greenwich. Verdict was directed for plaintiff, and defendant excepts. Plaintiff permitted to appear and show cause why the case should not be remitted, with direction to enter judgment for defendant.

Greenough, Easton & Cross, of Providence, for plaintiff.

Quinn & Kernan, of Providence, for de fendant.

VINCENT, J. This is an action brought by the plaintiff against the defendant, as PER CURIAM. The petition of the above town treasurer of the town of West Greennamed defendant for a trial of a case default-wich, to recover the amount of certain taxes ed in the Sixth judicial district court on May 28, 1918, was filed in this court on June 24, 1919, more than one year after the default. This court has no jurisdiction to grant the above petition for a trial, and the petitionty of Kent. The defendant introduced no is therefore denied and dismissed.

(42 R. I. 270)

ALBRO v. KETTELLE, Town Treasurer. (No. 5198.)

(Supreme Court of Rhode Island. July 1, 1919.) 1. TAXATION 542-INVOLUNTARY PAYMENT

-PROTEST-RECOVERY.

paid to said town for the years 1908, 1910, and 1912, which said payments are alleged to have been made under protest. The case was tried in the superior court for the coun

evidence. At the conclusion of the testimony for the plaintiff, each party moved the court to direct a verdict in his favor. The court granted the motion of the plaintiff, and, in accordance with such direction, the jury returned a verdict for $623.02.

The case is now before us upon exceptions to various rulings of the trial court, admitting and excluding evidence, and also to the direction of a verdict for the plaintiff.

The plaintiff, a resident and taxpayer in the town of West Greenwich for many years, Where the payer of overdue taxes took receipts from the collector of the town reading paid his tax for each of the years 1908, that his payments were under protest, such pay-1910, and 1912 upon the demand of the duly ments were involuntary payments, entitling him appointed collector. In each instance, how

It seems to be well established as the law of this state that a tax paid under protest is not such a voluntary payment as would preclude the taxpayer from recovering it back upon showing its illegality.

(107 A.) ever, he received from the collector a re-affirmed. ceipt upon which appears the words "paid under protest." It is not disputed that, in each case, the receipt is in the handwriting of the collector. These receipts are dated respectively January 25, 1909, December 30, 1910, and March 26, 1913.

[2] The defendant argues that there is nothing in the record to show that the moneys

The defendant in his brief presents two paid to the several collectors for taxes for questions for our consideration:

(1) "Were the several payments made by the plaintiff, under the circumstances as related by him, involuntary payments?"

(2) "Assuming that the plaintiff is entitled to recover, is he entitled to recover against the town treasurer, upon the record in this case, there being no evidence that the money was ever paid over to the defendant?"

[1] The defendant claims, upon his first point, that, inasmuch as there had been no levy or threat to levy on the plaintiff's property and no suit had been instituted or threatened against him for the collection of these taxes, the payment thereof was voluntary, notwithstanding the fact that he claimed to have made such payments under protest as evidenced by the receipts given, and that, having been made voluntarily, they

cannot be recovered.

the years in question were ever paid over to the town treasurer of the town of West Greenwich, and that, so far as appears, they are still in the hands of the collectors, and therefore the trial court should have directed a verdict for the defendant, and in support of that proposition cites Lindsey v. Allen, 19 R. I. 721, 36 Atl. 840 (1897). In that case the collector of taxes levied upon the taxpayer's estate for collection of the tax and the tax was paid without protest. lector, joining the town as a party defendThe taxpayer brought suit against the colant. It appeared affirmatively that the money was still in the hands of the collector, and the court held that, as the money had not come into the possession of the town, the town treasurer was not a proper party to the suit, and that it must be dismissed as to

him. The court in that case seems to have reached this conclusion without any con

the authorized agent of the other. However, the case of Lindsey v. Allen, supra, does not appear to have been followed, at least so far as this particular point is concerned, in some of the later cases decided by this court. Three years later, in Fish v. Higbee, 22 R.

I. 223, 47 Atl. 212 (1900), this court said:

That the several collectors were acting under proper warrants authorizing them to col-sideration of the question as to whether the lect taxes and to levy upon and sell the possession of the collector would or not be property of delinquent taxpayers is not dis- the possession of the town; the one being puted. From the dates upon the receipts given to the plaintiff it appears that the taxes must have been overdue at the time of payment. The plaintiff would be supposed to know that his continued refusal to pay his taxes would lead to a levy upon his property or the commencement of a suit against him, and that, in either event, he would be obliged to pay an additional amount by way of costs and interest, in case he was unsuccessful, together with other expenses which are usually incurred in litigated matters. To say that a taxpayer must assume Following this, the court proceeds to set such an added responsibility in order to place | forth the reasons for its conclusions, which himself in a position where he could recover the amount of a tax illegally assessed would not be reasonable.

In Dunnell Mfg. Co. v. Newell, 15 R. I. 233, 238, 2 Atl. 766, this court said that the payment of a tax could not be considered as compulsory from the mere fact that the collector had a warrant authorizing him to collect it, and that to so hold would practically make all payments compulsory, as the collector would have no authority to collect without a warrant. The court further held, however, that the tax, for the one year, which had been paid under protest, could be recovered back.

"A collector is the agent of the town or city in collecting a tax, and the town is really the only party interested in defending it. The money paid belongs to the town and not to the collector."

we need not here repeat.

In Pendleton v. Briggs, 37 R. I. 352, 92 Atl. 1024, this court said:

"The taxpayers are called upon to pay their taxes to the town treasurer, who proceeds to collect them under the duly executed warrant of the town, and whether or not such collector has given a sufficient bond to the town is not important to the taxpayer, as it is at once apparent that the town could not under such conditions be permitted to collect the tax again."

This is equivalent to saying that the payment of the tax to the collector constitutes a payment to the town, and therefore discharges the obligation of the taxpayer, and that he is not responsible for the disposition of the money after it reaches the hands of

In Rumford Chemical Works v. Ray, 19 R. I. 456, 34 Atl. 814, this rule was adhered to, and the conclusion arrived at in the collector. Dunnell Mfg. Co. v. Newell, supra, regard- [3, 4] The defendant contends that the ing voluntary and involuntary payments, was several payments of the plaintiff, now sought

to be recovered, were not accompanied by inferred that such protests were made with any written protest within the decision of a view to taking advantage of and utilizing this court in Rumford Chemical Works v. any irregularity which might be discovered Ray, supra, and that the protest claimed to at some later period. have been made by the plaintiff was nothing more than an oral protest, the placing of the words, "paid under protest," upon the receipts by the collector, being merely an acknowledgment that an oral protest had been made.

The authorization, assessment, and collection of a tax upon the ratable property of a town or city under our present laws is attended with much detail and offers many chances for the commission of error. Every person having taxable property should bear The purpose of requiring the taxpayer to his proportionate share of the expenses of make his protest in writing is to place on the municipality in which he resides or in record some irrefutable evidence that such which his possessions are located, and it is a protest was actually made at the time the reasonable that whenever he has been untax was paid, and not leave it to rest upon lawfully assessed, and desires to take adthe sole assertion of some one who might vantage of the error, he should apprise the find it for his interest to seek its establish- proper authorities of the basis of his claim ment at some later period when those who to the end that the error may be corrected, might disprove it were no longer available. if possible, or subsequently avoided. This We think that the receipts bearing the words, would not throw any burden upon the tax"paid under protest," placed there by the payer, because, as the court said in Louden collector, and by him given to the taxpayer, v. East Saginaw, 41 Mich. 23, 2 N. W. 185, were to all intents and purposes protests in "He could not know it was illegal without writing, but whether or not they were in knowing in what the defect was." The neterms sufficient protests remains to be con- cessity for such action on the part of the taxsidered. payer is well illustrated in the present case, where the error was repeated in several successive years.

The defendant in his brief has not directly discussed the adequacy of the protest, but that question was argued by counsel, and therefore may be considered.

As we have already seen, the plaintiff, in addition to the payment of these taxes under protest, said to the collector that he did not think he had been legally assessed; but he failed to point out, or even intimate, in what respect the assessment was illegal, and, so far as appears, he had, at the several times when he protested, no knowledge of any specific defect or illegality.

In the case of Cole v. Warwick & Coventry Water Co., 35 R. I. 511, 87 Atl. 307, decided July 13, 1913, it was held that the vote ordering the tax in the town of West Greenwich for the year 1910 was invalid for the reason that the meeting authorizing the assessment of the tax was not legally called. While the validity of the tax for 1910 was the only question before the court in that case, the decision therein was equally applicable to the years 1908 and 1912; the meeting in each of those years having been

called in the same manner as in 1910.

The plaintiff brought his suit to recover back the taxes for the years 1908, 1910, and 1912 on January 25, 1917, some three years and six months subsequent to the decision of this court in Cole v. Warwick & Coventry Water Co., supra.

Because there is no statute specifically requiring a protesting taxpayer to state the foundation of his protest, he is not relieved from pursuing a method which would be just and reasonable if he would seek to avoid the payment of his tax. To claim that the tax is illegal, without any specification whatever, would be unfair and unjust, in that it might deprive the town of all opportunity to correct its error and perhaps leave open the door for its repetition. This court said, in Dunnell Mfg. Co. v. Newell, supra:

"It is * * * no more than fair that a taxpayer, if he intends to take advantage of a defect, should at least object to or protest against the tax when he pays it, so that the assessors may have notice and correct the defect for the future."

paid without objection and without protest."

The language of the court above quoted only goes to the extent of saying that in order to recover back taxes, paid under an invalid assessment, the taxpayer must have made a protest without defining what the form of such protest should be. That case, therefore, is not helpful in determining the particular question now under consideration.

Inasmuch as it does not appear that the plaintiff in making his protests had in mind any specific defect or defects in the pro- We are thus brought face to face with ceedings bearing upon the assessment of the case of Rumford Chemical Works v. these taxes and did not bring his suit until Ray, supra, in which this court said, “We after the illegal action of the town had see no reason for requiring a specification in been revealed through the opinion of this the protest of the alleged illegality," and

(107 A.)

v. Clarke, 33 R. I. 339, 80 Atl. 257, 36 L. R. A. (N. S.) 476, Ann. Cas. 1913D, 564, where this court, following the case of Rumford Chemical Works v. Ray, supra, held that a protest without any specification of alleged illegality was sufficient.

The case of Rogers v. Inhabitants of Greenbush, 58 Me. 390, 4 Am. Rep. 292, which has been cited in connection with the case of Whitford, Bartlett & Co. v. Clarke, supra, is not an authority upon the question we are now discussing. To be sure, the court in that case said:

"We think that the law requires something more definite and distinct than general faultfinding, grumbling, complaint of injustice or inequality, even if in language it takes the form of protestation. It must be a distinct and definite protest against paying the particular tax, on the ground of its illegality. The form may not be material."

"It would be a harsh and violent presumption to assume that under any general protest, specifying nothing, the council could find what particular slip or fault could be found in an assessand only fell through by what was a clerical ment which was regularly and lawfully ordered, blunder, although one which cannot be called merely formal. * The council cannot be in fault for not knowing what a party means to complain of when he does not see fit to tell them."

In Meek v. McClure, 49 Cal. 623, the court said:

"Wherever a protest is essential, it is therefore necessary to state the grounds upon which the party paying the money claims that the demand is illegal."

With the establishment of such a rule, it logically follows that in any action taken by the taxpayer he must be confined to the defect or defects alleged by him in the pro

This, however, is a mere dictum, as the test which he makes at the time of payment. court immediately added:

"In the present case, as the parties desire a decision on the main question, we waive a decision on this question.'

Unless a protest contains something directing attention to the alleged defect, it would be likely to prove useless through its failure to give to the assessors, or other town authorities, that information which would lead them to discover their error and enable them to correct it or avoid its repetition.

Sup

The cases Rumford Chemical Works v. Ray and Whitford, Bartlett & Co. v. Clarke, both supra, are, in so far as they hold that a protesting taxpayer is not required to state the grounds of his protest, overruled.

The plaintiff may appear before this court on Monday, July 7, 1919, at 10 o'clock in the forenoon, if he shall see fit, and show cause, if any he has, why this case should not be remitted to the superior court with direction to enter judgment for the defend

ant.

FAIRCHILD et al. v. UNIFORM SEAM-
LESS WIRE CO. (No. 427.)

(Supreme Court of Rhode Island. July 8, 1919.)
CORPORATIONS 687-RECEIVER OF FOREIGN
CORPORATION-AUTHORIZation to Carry on

BUSINESS-STATUTES.

Under Gen. Laws, c. 213, § 27, as amended by Laws 1911-12, c. 780, and section 28, as amended by Laws 1909-10, c. 425, the superior court has authority to authorize receiver of a foreign corporation to carry on its business temporarily with the incidental power to borrow money for the corporate enterprise.

If one taxpayer can, by a protest in general terms, place himself in a position where he can recover back the tax he has paid, upon the later discovery of some defect within the period of the statute of limitations, many others or even all of the taxpayers might do the same, and thus force the town into a most embarrassing situation. pose, for instance, that a large number of the taxpayers in the town of West Greenwich had paid their taxes for the years 1908, 1910, and 1912 under a protest in general terms, as did the plaintiff in the case at bar, what would have been the result if the rule in the two cases above referred to should be followed? The town would be liable for the repayment of the money, which doubtless it had already expended in meeting its current expenses, and might be placed, temporarily at least, in a bankrupt condition. Petition by Arthur W. Fairchild and othWe do not think that a situation afford-ers against the Uniform Seamless Wire Coming such opportunities should be permitted pany of which Elijah Astle was appointed to continue, but that any protest relating to the payment of taxes, in order to be effective, should point out with reasonable certainty the defect or error upon which such protest is based.

This conclusion is not unsupported by authority. In Louden v. East Saginaw, supra, the court said:

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Judge.

temporary receiver. Thereafter Richmond Seabury was formally made a party, and, from a final decree allowing the account of the receiver and authorizing him to distribute the balance of the assets pro rata among all creditors, Seabury appeals. Appeal dismissed, decree appealed from affirmed, and cause remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Russell W. Richmond, of Providence, for [ be done by such corporation, or that may be appellant. necessary for the administration of his trust, according to the course of equity."

and generally to do all other acts which might proceedings.