Trower v. City & County of San Francisco
Before: Lorigan
Synopsis
Ebbs for Filing Inventory—Act of March 28, 1895, Unconstitutional.—The act of March 28, 1895, entitled “An Act to establish the fees of county, township and other officers, and of jurors and witnesses in this state,” in so far as it purports to require the payment of fees for the filing of inventories and appraisements in estates of decedents, infants, and incompetents is .unconstitutional.
Id.—Fees Illegally Exacted by County Clerk—Voluntary Payment —Remedy by Mandamus.—An executor who is compelled by the county clerk, as a prerequisite to the filing of an inventory and appraisement in his testator’s estate, to pay the fees purported to-be fixed by that act, upon the refusal of the clerk to make the filing unless such fees were paid, may maintain an action to recover the same back. The payment so made was not voluntary, and the executor was not confined to the remedy by mandamus to compel the filing of the documents.
Id.—Payments When Voluntary or Involuntary.—When an illegal demand is made against the person or property of an individual which can be enforced only by a judgment therefor in an action at law wherein he can control its legality, or if made under a threatened sale of his property, and he can contest the validity of the proceedings whenever an attempt is made to disturb his possession, and he pays the claim or demand rather than be subjected to such action or to have his property sold, such payment is voluntary to the extent that it cannot be recovered in an action therefor. If, however, an illegal demand is made by any person holding an official position, with the color of authority to enforce the same, and suéh demand operates as a restraint upon the exercise of an undoubted right or privilege, and in its enforcement there is no opportunity of contesting its validity, a payment of the demand in order to remove such restraint is compulsory and not voluntary.
[480]
LORIGAN, J.
Plaintiff brings this action against the city and county of San Francisco upon fifty-eight assigned causes of action set forth in separate counts, the allegations of which are identical with the exception of the names, dates, and amounts. The first count is for the recovery of ninety dollars only, but the aggregate sum for which judgment is sought on all the counts in the complaint amounts to fifty-four hundred dollars.
The action involves certain fees alleged to have been demanded and collected by the county clerk of the city and county of San Francisco, and thereafter paid to the county treasurer of said city and county, for the filing of inventories and appraisements in estates of decedents, infants, and incompetents mentioned in the various counts of the complaint under the provision of an act of the legislature of this state entitled “An Act to establish the fees of county, township and other officers and of jurors and witnesses in this state,” approved March 28, 1895, [Stats. 1895, p. 267], Subsequent to the payment of such fees this act was declared unconstitutional (Fa
tjo
v.
Pfister,
117 Cal. 83, [48 Pac. 1012]), and thereupon this action was brought to recover them back.
For the sake of brevity reference will be made only to the first count in the complaint. It is there alleged that on February 2, 1897, the executors of the Estate of William Andrew, deceased, pursuant to the provisions of said act paid to the county clerk of the city and county of San Francisco upon filing the inventory and appraisement in said estate the sum of ninety dollars; that said sum was demanded,from said executors as the fee provided by law for the filing of said inventory and appraisement by said county clerk, who refused to file the same until and unless said sum was paid; that said sum was paid by reason of said demand and refusal to file said inventory and appraisement unless it was paid, and not otherwise, and that said sum so paid was in excess of all fees required by law in said estate. Then follows an allegation of the assignment of said claim to plaintiff, his presentation of a verified claim and demand to the board of supervisors of said city on December 22, 1897, within one year after the discovery that said fees had been illegally collected and the rejection of said claim by said board.
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