Bucknall v. Story

By the Court, Crockett, J.: This is an action to recover a sum of money, paid under protest by the plaintiffs to the defendant, as a Tax Collector, for an assessment on their land for the widening of Kearny street, in San Francisco; the .property in question being situated within the district defined by the Board of Supervisors as that which would be benefited by the improvement. The assessment is alleged to have been illegal on the ground that in the report of the Commissioners appointed to make the valuations and assess the benefits, the plaintiffs’ land was assessed as the property of E. L. Sullivan, who had no interest therein, and that the plaintiffs were not made parties to the proceeding. It is claimed that for these reasons the assessment was void, and that neither the plaintiffs nor their land were bound by the proceedings. On the other side, it is contended that if it be conceded that the assessment was void for the reasons above stated, the payment having been made by the plaintiffs with a knowledge of all the facts, it was a voluntary payment, and the action cannot be maintained. This branch of the case will be first considered.

In Hays v. Hogan, 5 Cal. 241, the Trustees of Oakland had levied an excessive and illegal tax, which was therefore void. If the tax had been legal, it could only have been collected by suit, and not by a summary sale of the property by the Tax Collector. That officer, however, proceeded to sell the property for the collection of the tax, against the protest of the owner, who became the purchaser at the sale in order to prevent a cloud upon the title, and then brought an action against the Tax Collector to recover back the money. On these facts this Court said : “ The right of the [597]plaintiff to recover, under these circumstances, is undoubted. He protested against the sale, purchased in order to protect his property from a clouded title, and made the payment under protest, and in a few days afterwards commenced his suit for the recovery of the money.” No authorities are cited in the opinion.

In McMillan v. Richards, 9 Cal. 417, the Court says: “The object of a protest is to take from the payment its voluntary character, and thus conserve to the party a right of action to recover back the money. It is available only in cases of payment under duress or coercion, or when undue advantage is taken of the party’s situation. It has no application to voluntary payments. * * * It is notice only to the party receiving the payment that if the demand is illegal in whole or in any specified particulars he may be subjected to an action for the recovery back of the amount to which objection is made; and if action be brought, the protest is only available as evidence of the fact of compulsion.” The Court quotes with approbation the following extract from the opinion of Sandford, J., in Fleetwood v. City of New York, 2 Sandford’s Superior Court R. 481: “When a party pays under duress of his goods, a protest may become important as evidence that the payment was the effect of the duress, and not an admission of the right enforced by the adverse party. But where there is no legal compulsion a party yielding to the assertion of an adverse claim cannot detract from the force of his concession by saying I object or I protest at the same time that he actually pays the claim. The payment nullifies the protest as effectually as it obviates the previous denial and contestion of the claim.”