Hopkins v. City of Butte , 16 Mont. 103 ( 1895 )

Hunt, J.

Several points are raised by the defendant’s motion for a nonsuit, but we prefer to confine our opinion to a single question presented, — whether an action of assumpsit can be maintained to recover money paid for taxes upon a special tax assessment, where such payment has been made before the penalty for nonpayment is assessed or due, but where one who has made such payment notified the treasurer of the city, at the time of the payment, that she paid under protest, and that she intended to sue to recover back. We pass upon this question, because, by the record, the appellant is forced into the contention that the payment by her to the city treasurer of Butte was an involuntary one. She does not set forth in her complaint that the penalty had become due upon the taxes levied upon her property, nor that there was any actual seizure, or any urgent or immediate danger of a seizure, of her real estate by the proper authorities, nor that the property was advertised, or about to be advertised, for sale, nor that any act was immediately threatened or about to be done by which she would be deprived of the enjoyment of her real estate, but relies upon a probability that, in the usual legal course of affairs, if she should become delinquent, the city treasurer of Butte would proceed to make out a delinquent assessment list, and certify the same to the county clerk of Silver Bow county, who would add the penalty prescribed, and certify the same to the treasurer of Silver Bow county, whose duty under the law it would ultimately be to proceed to sell the property for the payment of the taxes due.

The common-law rule which, in the absence of statute, must govern all demands similar to that made by a municipality for taxes of one of its inhabitants whose property has been assessed, is that where a party pays an illegal demand with a full knowledge of all the facts which rendered such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent the immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back; and the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary. (Railroad Co. v. Commissioners, 98 U. S. 541; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct. 620.) And the test of whether or not money paid for the payment of taxes was a payment under duress, so as to make it an involuntary payment, “must, in general, consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party accepting or receiving the payment, over the person or property of another, from which the latter has no other means, or reasonable means, of immediate relief, except by making payment.” (2 Dillon on Municipal Corporations, § 943.) It cannot be successfully argued that Mrs. Hopkins paid the tax which she now seeks to reco'ver for the purpose of immediate relief. Indeed, the contrary appears, for she stated that she wanted to go away from Butte, and, while she thought the tax was unjust and illegal, of her ■own free will she paid the amount of it, merely stating, in effect, that it was paid under protest, and that she intended to sue to recover it back. The assessment does not appear to have ever been set aside by any legal proceedings, and it is admitted that the improvements for which the levy was made were built in front of the property assessed. She knew, presumably, that the city treasurer could not sell her property, and could not even do as much as assess the penalty in case the tax was not paid. All these facts clearly show, at law, an unwilling, but none the less voluntary, payment, as contradistinguished from a compulsory payment. Such a payment does not entitle her to the relief she asks. (Cooley on Taxation, § 811; First National Bank v. Mayor, etc., 68 Ga. 120; Rogers v. Inhabitants of Greenbush, 58 Me. 392; Conkling v. City of Springfield (Ill. Sup.) 24 N. E. 67; Bowman v. Boyd, 21 Nev. 281, 30 Pac. 823; Richardson v. City of Denver, 17 Col. 398, 30 Pac. 333; Swift v. City of Poughkeepsie, 37 N. Y. 511.)

The constitutionality of the law under which the assessments were levied was not assailed. It is only claimed that the city of Butte, by reason of a failure to pass an ordinance dividing the city into sewer districts, had not taken the steps necessary to authorize it to levy any special sewer assessments. There was a resolution and ordinance passed, however, in which sewer districts were created. The ordinances may have been defective, and the assessments even irregularly made, but the general power of the city to make sewer assessments under valid ordinances is not disputed. The case, therefore, is not one where authority to levy the tax was wholly wanting, and must be distinguished from decisions which uphold the right to recover back taxes where the levy of the tax is on its face invalid, and where protest on the ground of illegality was made at the time of payment. (Shoup v. Willis, 2 Idaho 108, 6 Pac. 124; Gillette v. Hartford, 31 Conn. 351; Newman v. Supervisors, 45 N. Y. 676.)

It is also to be distinguished from the opinion of Chief Justice Chase in Erskine v. Van Arsdale, 15 Wall. 75, in that payment was made in that case to release property from detention, and the protest against payment (as in other cases involving the payment of revenues to release property) saved the rights which grew out of that fact, while in the case at bar-there was no levy at all, and no right to make a levy was conferred upon the treasurer of the city, to whom payment was made. Nor can Whitney v. City of Port Huron (Mich.) 50 N. W. 316, control under the conditions of fact here existing. In that case the plaintiff sued to recover taxes paid by her, under protest, on a special paving assessment. Payment was • made under protest, and to protect the property from being sold, and on account of the taxes being illegal. The city treasurer had advertised the plaintiff’s property for sale, and she had the right to presume that he would proceed with“ the sale. The case was thereby brought within the rule of immediate and urgent necessity of paying the tax to prevent seizure. And it was held that a payment made under such a threat was an involuntary one.

Under the great weight of authority and reason, the law looks with disfavor upon suits to recover back taxes where dissatisfaction and unwillingness to pay, rather than compulsion, to prevent the immediate execution of a levy or seizure, are the causes which prompt the protest. The judgment is affirmed.

Affirmed.

Pemberton, C. J., and De Witt, J., concur.