Phelan v. City & County of San Francisco

Action to Recover Taxes Paid—Improvement of Dupont Street—Protest— Notice to Collector—City and County not Liable.—The city and county of San Francisco cannot be compelled to refund any taxes assessed for the improvement of Dupont street, which were paid under protest, by virtue of the provisions, of section 3819 of the Political Code, nor as being money had and received to the use of the payer of the taxes, upon the ground that the plaintiff notified the tax collector not to pay the money into the treasury, and that he would institute an action to recover the money paid, it being the duty of the collector to pay the money into the treasury immediately upon its receipt, regardless of such notice or of any protest accompanying the payment; nor can such payment be recovered as having been made under duress, it being voluntary in its nature.

Id.—Duress—Voluntary Payment—Illegal Tax Deed—Burden of Proof upon Purchaser—Sale under Dupont Street Act.—In order to constitute a payment under duress, there must be some coercion or compulsion, or some threatened exercise of authority over the person or property of the party making the payment, which controls his action, and which can be avoided only by making the payment; nor does the payment of a tax under protest of such party take from the payment its voluntary character, unless it is necessary in order to protect his person or property, or unless the conveyance by the officer will have the effect to deprive the owner of some defense to the tax, or throw upon him the burden of showing its illegality; and where the officer’s want of authority will appear upon the face of the deed, or the illegality of the proceedings will necessarily appear in any attempt to disturb the owner in the possession of the land, a payment under protest to prevent such sale is not made under duress, but is voluntary, and cannot he recovered back; and this principle applies to a tax sale under the Dupont street act, there being no provision therein making a deed from the collector prima, facie evidence of any proceedings prior thereto, and under such deed the purchaser must prove each step in the proceedings, which, if illegal, cannot affect the owner’s possession.

ID.—CONSTRUCTION OF DUPONT STREET Ad—MANNER OF COLLECTING TAXES— Effect of Tax Deed as Evidence.—The provision of the Dupont street act that “there shall be levied, assessed, and collected annually, at the time and in the manner as other taxes are levied, assessed, and collected in said city and county, a tax, etc., for the purpose of meeting the expense of the improvement,” does not have the effect to make a deed upon a sale for assessments levied prima facie evidence of the truth of matters recited therein, that being no part of the manner of collecting the taxes levied and assessed under the act.

In.—Valid Tax—Defective Proceedings—Effect of Protest.—If a tax is valid and constitutes a lien upon the land of the person paj-ing the tax, his protest at the time of payment can give him no right to recover back the sum paid by reason of any defect in the proceedings for the sale of the land to enforce the collection, but in such case the satisfaction of the obligation to pay the tax, and the release of the lien thereof upon his property, are a sufficient motive and consideration for the payment to take from it all character of duress.