Peebles v. City of Pittsburgh , 1882 Pa. LEXIS 254 ( 1882 )

Mr. Justice Green

delivered the opinion of the. court, October 25th 1882.

The assessment against the plaintiffs' could only be collected adversely by means of a proceeding in the courts. It was payable in installments, and if these were not paid within thirty days after they became due, the city attorney, was to file a claim for the same in the District Court in the same manner as mechanics’ liens are filed, and a writ of scire facias and levari facias might issue thereon as in case of mechanics’ liens. Of course in such a proceeding the person assessed would be accorded every possible opportunity to appear and interpose all objections to the recovery of the money. In the present case notice of filing the assessment with the city treasurer was given to Mr. Peebles by that officer, and demands were made for the payment of several installments, accompanied with the statement that unless they were paid they would be collected by process of law. These demands were made by the city attorney, in whose hands the claims had been placed for collection. The plaintiffs allege, and the court has found, that in consequence of these demands they paid several assessments protesting that they were not legally liable to pay the same and would seek to recover back the money, The court also finds that the plaintiff believed the assessment to be illegal and void at the time the installments were paid, and further, that the city solicitor assented to the proposition that if there was no legal liability to pay the assessment the money could be recovered back from the city.

In such circumstances can the plaintiffs recover? We think not. The reason is that the payments were not compulsory. They were not made under any duress of person or goods, of under any impending danger of seizure or sale of property. No warrant or other process had been issued’ directing a levy upon any property, nor had any right been acquired to issue such process. ’ Before such a right could possibly be obtained the plaintiffs were entitled to a day in court, to be heard in opposition to the claim, to have the adjudication of the regularly constituted courts of the commonwealth, including the court of last resort on writ of error. The plaintiffs believed, at the time the installments were paid, that the assessment was wholly void, and the Act of Assembly under which it was laid unjust and unconstitutional. There was therefore, no mistake either of fact or law, under the influence of which the money was paid. A payment in such circumstances is a voluntary payment and can not be recovered back and this has been many times held. The doctrine is fully set forth in Hospital v. Philadelphia County, 12 Harr. 229, one of the cases relied upon by the.plaintiffs. On page 231, Lowrie, J., said : “ A voluntary payment of money under a claim of right cannot in general be recovered back; but it has been held that when a party is compelled by duress of his person or goods to pay money for which he is not liable it is not voluntary but compulsory; and he may rescue himself from such duress by payment of the money, and afterwards on proof of the fact recover it back: Astley v. Reynolds, 2 Str. 916; 12 Pick. 13. But the threat of a distress for rent is not such duress because the party may replevy the goods distrained, and try the question of liability at law; Knibbs v. Hall, 1 Esp. Rep. 84. The threat of legal process is not such duress, for the party may plead and make proof, and show that he is not liable: Brown v. McKinally, 1 Esp. 279. But the warrant to a collector under a statute for the collection of taxes, is .in the nature of an execution running against the person, and property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability. Where, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant, and he can save-himself in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and maintain an action to recover it back ; 17 Mass. 461; 12 Pick. 13.” The foregoing extract expresses the whole law applicable to this case. Where there is compulsion actual, present, potential in inducing that payment by force of process available for instant seizure of person or property, and the demand is really illegal, then the party by giving notice of the illegality and of his involuntary payment can recover back the money so paid in an action brought for that purpose. Where the payment is voluntary, as in this case, a protest with notice of an intent to reclaim, is not sufficient to sustain a recovery. The voluntary character of the payment still remains, notwithstanding the notice, and is fatal to the action. The element of coercion is essential to the right. Thus, in Dillon on Municipal Corporations, section 940, one of the requisites to the right of recovery is thus described : “The payment by the plaintiff must have been made upon compulsion to prevent the immediate seizure of his goods or the arrest of the person, and not voluntarily. Unless these conditions concur, paying under protest will not give a right of recovery.” In the case of Taylor v. The Board of Health, 7 Cas. 73, it was said in the opinion of this court, on p. 75, “We state the case as one of a voluntary payment of taxes because there is no pretence that the defendant’s officers did any more than demand the tax under a supposed authority of the law, and this is no more a compulsion than when an individual demands a supposed right. The threat that is supposed to underlie such demands is a legally harmless one; that in case of refusal, the appropriate legal remedies will be resorted to.” Neither this case nor the case of Borough of Allentown v. Saeger, 8 Har. 421, decides that a mere protest and notice where the payment is voluntary will confer a right of recovery. In the latter case the money was paid to an ordinary tax collector, who, it must be supposed, was armed with a warrant in the usual manner. In McCrickart v. City of Pittsburgh, 7 Norr. 133, the question was not raised. The payment was purely voluntary and the decision was put upon that ground. We have not been referred to any case and we know of none in which upon the question being directly raised, it has been held, that where the payment was entirely voluntary, a right to recover back the money paid, was created by a protest and notice of an intent to reclaim.

On the contrary it has been frequently, and by different courts, decided that such a notice and pretest are not sufficient to give a right of reclamation where the payment was voluntary, the point being directly under consideration. The following are some of the cases: Commissioners v. Walker, 8 Kans. 431; Railroad v. Commissioner, 98 U. S. Rep. 541, per Waite, C. J.; Forbes v. Appleton, 5 Cush. 115; Patterson v. Cox, 25 Ind. 261. In Shane v. City of St. Paul, 10 Reporter 368, the court say: “ The payment therefore was a voluntary one unless the protest, which accompanied, it, gave it a different character. This it could not do. If in fact the party was under no duress, restraint or compulsion, when he made it, it cannot be said that he acted under the influence .of any coercion in making it, because he accompanied the act with a written or verbal protest. A protest is of no avail except in the case of payment made under duress or coercion, and then only as evidence tending to show that the alleged payment was the result of duress: McMillan v. Richards, 9 Cal. 417.” In the case of Railroad v. Commissioners, supra, Chief Justice Waite, after stating the rule substantially as above, added, on p. 544: “This, as we understand it, is a correct statement of the rule of the common law. There are, no doubt, cases to be found in which the language of the court, if separated from the facts of the particular case under consideration, would seem to imply that a protest alone ivas sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to the other attending circumstances.” This observation is applicable to many of the cases cited by the learned counsel for the plaintiffs. It is worthy of remark that in the case just referred to the claim paid was for taxes and the treasurer had in his hands at the time a warrant which would have authorized him to seize the goods of the company to enforce the collection, and the warrant was in the nature of an execution running against the property. When the company paid the tax claimed they filed with the treasurer a written protest alleging the illegality of the tax and giving notice that suit would be brought to recover back the money paid. Notwithstanding all this it was held that no recovery could be had because in fact no attempt had been made to put the warrant in force. The Chief Justice quotes with approbation the language of Chief Justice Shaw in Preston v. Boston, 32 Pick. 14, stating the rule thus: “When therefore a party not liable to taxation is called upon peremptorily to pay upon such a warrant and he can save himself in no other way than by paying the illegal demand he may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable to pay, recover it back,” and he adds: “This we think is the true rule.” Many more cases to the same effect might be cited, but it is unnecessary to prolong the discussion as the principle involved is free of difficulty.

Judgment affirmed.