(43 R. I. 426)

RIVES et al. v. TAYLOR, City Treasurer.

(No. 5441.)

the amount paid by the plaintiffs and received by the defendant as taxes.

The case, at issue on its merits in the su

1921.)

1. Municipal corporations 971(4)-Taxpayers held not prejudiced, and tax not affected by delay in completing and filing assessment roll.

Taxpayers, who had ample notice of the time for bringing in an account of their ratable estate, but failed to bring in such account, and therefore had lost all right to petition for relief for overvaluation under Gen. Laws 1909, c. 58, §§ 6, 7, 14, 15 were not prejudiced, and the tax against them was not affected by the failure of the assessors to complete the assessment and file the assessment roll within the time prescribed by an ordinance.

2. Municipal corporations 983-Taxes not due until assessment roll filed and no penalty could be imposed until reasonable time thereafter.

Under a city ordinance requiring the assessors to complete and file the assessment roll by June 25th, and providing that the tax should be due and payable between July 1st and August 31st, and that all taxes remaining unpaid on the latter date should carry a penalty, where the assessment roll was not completed and filed until Septembr 6th, the tax was not due until such filing, and the taxpayer was entitled to a reasonable time thereafter in which to pay before a penalty could be imposed.

3. Municipal corporations 977-Payment before assessment roll filed held voluntary and

not recoverable.

upon an agreed statement of facts, in accordance with the provisions of section 4, chapter 298, G. L. 1909.

The essential facts are as follows:

On the 17th day of February, 1919, the representative council of the city of Newport passed an ordinance ordering the levy and collection of a tax for the year 1919. Said ordinance duly specified the rate of tax to be assessed against different classes of property, and declared the purposes for which the tax was required, and provided that:

"The board of assessors shall assess and apportion said tax on the inhabitants and ratable property of said city on the 29th day of March, A. D. 1919, at 12 o'clock noon according to law, and shall on completion of said assessment, date, certify and sign the same and deliver to and deposit the same in the office of the city clerk on or before the 25th day of June, A. D. 1919. The city clerk on receipt of said assessment shall forthwith make a copy of the same and deliver to the city treasurer who shall forthwith issue and affix to said copy a warrant under his hand directed to the collector of taxes of said city. commanding him to proceed and collect said tax of the persons and estates liable therefor. Said tax shall be due and payable on and between the first day of July and the thirty-first day of August, A. D. 1919, and all taxes remaining unpaid on said thirty-first day of August, A. D. 1919, shall carry until collected a penalty at the rate of twelve per centum per

annum."

"The assessors of taxes did not complete, cer

tify, and sign any assessment or deliver to and deposit the same in the office of the city clerk, nance, on or before the 25th day of June, A. D. in pursuance of the provisions of said ordi1919, but that said assessment was not completed, dated, certified, signed, and deposited in the office of the city clerk until September 6, A. D. 1919."

Action by William C. Rives and others against John M. Taylor, City Treasurer. Certified from the superior court on an agreed statement of facts. Decision for defendant for costs.

Sheffield & Harvey, of Newport, for plain

tiffs.

Jeremiah A. Sullivan, of Newport, for defendant.

ment against the plaintiffs, the total tax on which was $11,759.38.

"On August 30, 1919, the plaintiffs paid, to the tax collector of the city of Newport, the sum of $11,759.38, in payment of said tax, but under protest, however, on the ground that said assessment was illegal and void because the said assessors had not complied with the ordinances of the city of Newport ordering said tax, and with the provisions of law."

sentment.

The questions presented for our determination are as follows:

(2) Whether the plaintiffs are entitled to recover from the defendant the said sum of $11,759.38.

[1] The assessment of the tax was in every way regular, except as to the time of completing the assessment and filing the assessment roll. The plaintiffs contend that they are entitled to recover by reason of the fact that the board of assessors failed to complete the assessment and file the assessment roll in the office of the city clerk within the time fixed by said ordinance.

Wherein did the delay in filing the tax roll infringe upon the rights of the plaintiffs? They had ample notice of the time when they were required to bring in an account of their ratable estate. In this state there is no board of equalization. Chapter 58, G. L. 1909, provides as follows:

"Sec. 14. If any person shall bring in an account as aforesaid, the assessors shall neverthe less assess such person's ratable estate at what they deem its full and fair cash value.

"Sec. 15. Any person aggrieved thereby may, within six months after the time appointed for the payment of such tax, petition the superior court for the county, for relief from such assessment."

The plaintiffs neglected to bring in to the assessors an account of their ratable estate in accordance with the provisions of section 6 of said chapter. Section 7 of said chapter provides that

"Whoever neglects or refuses to bring in such

"Where the law requires the assessment roll to be completed and filed on or before a certain day in the year, it is held in some states that this provision is mandatory, and that a delay in making the return beyond the time limited will invalidate the assessment; but in others this provision is considered as directory only, and a delay in filing as a mere irregularity not affecting the validity of the tax. The better rule, however, appears to be that a delay in returning the roll is important only when it deprives the individual taxpayer of his opportunity to examine into his own assessment and to take proper steps to have it reduced or corrected, or unreasonably shortens the time allowed him for this purpose." See Burlington Gaslight Co. v. Burlington, 101 Iowa, 458, 70 N. W. 628; Anderson v. Mayfield, 93 Ky. 230, 19 S. W. 598; People v. Haupt, 104 N. Y. 377, 10 N. E. 871; Magee v. Commonwealth, 46 Pa. 358.

[2] It was suggested that the taxpayer was subjected to a penalty for not paying his tax before the tax roll was filed. Notwithstanding the ordinance declaring said tax to be due and payable on and between the 1st day of July and the 31st day of August, 1919, the tax was not and could not be due before the tax roll was filed. The taxpayer could not be subjected to a penalty for not paying a tax before it was due. The taxpayer would be entitled to a reasonable time to pay his tax after the assessment roll was filed. The delay in completing the assessment and filing the assessment roll deprived the plaintiffs of no substantial right.

[3] Although the plaintiffs on August 31,

therefor."

As the plaintiffs by their own neglect lost all right to petition for relief from overvaluation it cannot be said that the delay thereafter of the assessors in completing the assessment and filing the assessment roll interfered with any right to petition for relief. In Pendleton v. Briggs, 37 R. I. 352, 92 Atl. 1024, the work of assessing the tax was actually completed within the time fixed by the town, but the court did use the following language (37 R. I. at page 359, 92 Atl. at page 1027):

"An action for the recovery of a town tax cannot be defeated by mere irregularities which do not go to the jurisdiction of the assessors or deprive the defendant of some substantial right. [Citing authorities.] It does not seem to us to be material to the taxpayer when the board of assessors performs its work, provided there is nothing done or omitted which deprives the defendant of some substantial right."

the money which they on said date delivered to the tax collector, nevertheless the payment was voluntary. The tax collector on said date had no authority either to demand or receive taxes. He did receive from the plaintiffs, not as tax collector, but in his individual capacity. $11,759.38, and when the taxes were due he applied said sum to the A person payment of the plaintiffs' taxes. cannot pay taxes under protest when no one is authorized to demand payment and when no tax is due. A tax which has been See paid voluntarily cannot be recovered. Dunnell Mfg. Co. v. Newell, 15 R. I. 233, 2 Atl. 766.

Decision for the defendant for costs.

The papers in the cause, with the decision of this court eertified thereon, are ordered sent back to the superior court for Newport county, with direction to enter final judgment for defendant for costs upon said decision.

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

Clark, during the remainder of her lifetime, and also to provide for the repayment of the sums advanced and expended by the said Frank E. Ballou, Ellsworth Sisson, and Benjamin S. Clark in the repair and improvement of said premises and to provide against any further controversy arising as to the management of said property, and for the purpose have agreed to place the management of said property and of certain other funds to be provided for the support of said Susan Clark, as hereinafter re

ney, as trustee under the trusts hereinafter set forth; and

Lyman & McDonnell, Thomas F. I. McDonnell, and Richard E. Lyman, all of Providence, for petitioners.

Curtis & Ball, Claude C. Ball, and Adolph Gorman, all of Providence, for respondents.

STEARNS, J. This is an appeal from a final decree of the superior court whereby the complainant trustee was authorized to sell certain real estate and to distribute the proceeds.

The property in question is the homestead estate of one Wait Clark, deceased, situated on Broad street in the city of Providence on which is a three-story house, having one tenement each on the second and third floors and a store on the street floor. Susan Clark, the widow of Wait Clark, had a life estate in the property which was subject to a mortgage of $3,000 held by a bank. She occupied the tenement on the third floor, and her son, the respondent Benjamin Clark, lived on the second floor.

In 1914 Susan Clark and her four children, Benjamin, Henry, Sarah, and Susan S., heirs at law of Wait Clark and Susan Clark and owners of the estate subject to the life estate, made and executed an agreement and trust deed to one Josiah K. Barney. This deed was recorded in the land records of the city of Providence. All of the children were married, and the spouses of each child and the trustee were also parties to the trust agreement and signed and executed the same. The instrument, which was evidently drawn with care, consists in the first place of an agreement between all the parties mentioned, including the trustee. After a recital of the facts in regard to the estate, the ownership and occupancy thereof, and the existence of the mortgage, it is stated that Frank E. Ballou, the husband of Sarah, Ellsworth Sisson, husband of Susan S., the daughter, and the respondent Benjamin have each advanced and expended certain sums of money in the repair and improvement of the premises. Then come the following

clauses:

"Whereas, it is the desire of the said Ben

"Whereas, the said Josiah K. Barney has agreed to act as said trustee and to accept said trusts hereinafter set forth.

Then follows a description of the premises and a quitclaim deed of the same to the trustee.

The terms of the trust are as follows:

(1) The trustee is to take immediate possession and management of the property, keep the property in repair, insure the same, and from the income of the property pay the interest on the mortgage, or any other mortgage which may be given in place thereof, insurance premiums, taxes, expenses of repairs, and his own compensation as trustee. (This compensation was by the agreement fixed at $50 per year.)

(2) All the rest of the income is to be paid by the trustee to the mother so long as she shall live.

(3) The mother is permitted to occupy the third story tenement free of all charge so long as she lives.

(4) The trustee is to permit Benjamin to occupy the second story tenement on the payment of $22 per month rent beginning June 1, 1914.

(5) In order to better provide for the support of the mother, Benjamin Clark, Frank Ballou, and Ellsworth Sisson agree to advance from time to time in equal amounts not to exceed $100 a year for each party such sums as in the judgment of the trustee shall be reasonably required in addition to the income for the support of the mother.

(6) Upon the death of the mother, the trustee shall pay from the income, or from funds advanced, the reasonable expenses of her last sickness, death, and burial.

(7) Upon the death of the mother "said trustee shall continue to manage said estate and collect the income therefrom, and, after paying taxes, insurance premiums, interest on the mortgage, and costs of necessary repairs and his own compensation for services as herein stated, shall pay all sums advaneed by him or by any of the parties hereto for the payment of said expenses of the last sickness, death and burial of the said Susan Clark, and all sums paid over to him for the