Big Bear of North Carolina, Inc. v. City of High Point

ARNOLD, Judge.

Plaintiffs assign error to the findings of fact and conclusions of law by-the trial court. They argue that payments for collection of trash and garbage were under such compulsion or coercion as to make the payments involuntary. The City’s position is that since plaintiffs had voluntarily purchased the dumpster boxes prior to enactment of the ordinance the only involuntary act by plaintiffs was the payment of the fees, and that the portion of the ordinance requiring payment of fees for dumpster services was not found to be invalid.

As a general rule one, who, because he is coerced, pays money which he does not owe, may recover it. Bradsher v. Morton, 249 N.C. 236, 106 S.E. 2d 217 (1958); 5 Strong’s N. C. Index 2d, Money Received § 1 (1968). However, money paid voluntarily and with full knowledge of the facts cannot be recovered even where there is no debt. Thompson v. Shoemaker, 7 N.C. App. 687, 173 S.E. 2d 627 (1970).

Plaintiffs cite no North Carolina cases which permit recovery from a municipality of unowed money paid to it under threat of discontinuance of a service, such as trash collection. However, there is authority from other jurisdictions which supports the recovery of such money. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P. 2d 967 (1971); City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40, 75 N.E. 803 (1905); St. Louis Brewing Ass’n v. City of St. Louis, 140 Mo. 419, 37 S.W. 525 (1896); Cf. Farrell v. Ward, 53 A. 2d 46 (D.C. 1947). There is also some support for this principle in North Carolina cases which permit unlawful taxes to be recovered if they were paid involuntarily and under protest. G.S. 105-267; Middleton v. R. R., 224 N.C. 309, 30 S.E. 2d 42 (1944); Blackwell v. Gastonia, 181 N.C. 378, 107 S.E. 218 (1921). We see no material difference between taxes levied to fund general governmental operations and fees charged to provide compensation for a particular important municipal service, such as trash and garbage collection.

Evidence does not support Finding of Fact No. 4 that. plaintiffs “desired the dumpster service by the City of High Point.” The term “desired” was obviously used by the court in the context of Sec. 10-6 (b) of the City Ordinance that those “ . . . desiring to have dumpster boxes shall pay a fee ...” for collection. However, an examination of the original ordinance reveals that “desiring” is a participle which modifies a group of persons, firms or corporations who “shall pay a fee of fo’’r dollars ($4.00) each time the dumpster box is serviced.” Such persons, firms or corporations could desire a dumpster box as a trash receptacle and still not desire the City’s “dumpster box service.” More importantly, plaintiffs were among those who were required by the invalid ordinance and regulation to have dumpster boxes. It is irrelevant that prior to 21 January 1971 the plaintiffs voluntarily used the boxes (Finding of Fact No. 1) because prior to that time the City charged no fee to service the dumpster boxes.

Since the evidence fails to support Finding of Fact No. 4 there is no support for the trial court’s Conclusion of Law No. 3 that “ [P] laintiffs have failed to establish that they were required under the invalid provisions of the ordinance to have dumpster boxes.” Plaintiffs in fact were required by Sec. 10-6 (a) and the regulation thereunder to have dumpster boxes, and, according to the record, after 21 January 1971 plaintiffs did not.desire the City’s dumpster service for which they had to pay a fee. The facts are that plaintiffs desired the service as it was furnished, without a fee, prior to enactment of the ordinance.

The court’s Conclusion No. 4 that plaintiffs failed to show . that they requested the City not to service the boxes, as plaintiffs could have done under another section of the ordinance, misses the point. While the record is silent here, it can be presumed that plaintiffs could have hauled away their own trash, or contracted with someone else to haul it away. However, if it was coercion for the City to force plaintiffs to pay the City fees under color of an unconstitutional ordinance, then it also would be coercion for the City, by discontinuing service, or threatening to discontinue service, to force plaintiffs to pay the extra cost to a private contractor, or increase their own cost, when but for the unconstitutional ordinance the City would have performed the service at no extra cost to plaintiffs.

For reasons already stated, Conclusion No. 2 that payments made by plaintiffs to the City were valid cannot be supported. These payments were involuntary and can be recovered by plaintiffs. Judgment is reversed, and the case is remanded to Superior Court of Guilford County for entry of judgment in favor of plaintiffs.

Reversed and remanded.

Judges Britt and Vaughn concur.