Garibaldi v. City of Daly

NOURSE, P. J. Respondents have moved to dismiss the appeal of certain named appellants on the grounds that the question on appeal as to them has become moot. The judgment appealed from was one of dismissal in a suit to set aside a special assessment levied by respondent city. Between December 11, 1942, the date of the order sustaining defendants’ demurrer, and January 11, 1943, the date of the entry of the judgment of dismissal, the named appellants paid the assessments levied to the banking firm of the contractor. These payments were not made under protest. However,.the contractor' sent a notice to the plaintiffs which stated that if they did not pay, bonds would issue against their property. The notice of appeal was not filed until February 2, 1943. Section 8 of the Improvment Bond Act of 1915 (Stats. 1915, p. 1441; Act 8209, Deering’s Gen. Laws, p. 3770) provides that the bonds by their issuance would be conclusive evidence of the regularity of the proceedings prior thereto.

. It is the respondents’ position that having paid the assessments voluntarily, the named appellants could not recover them and therefore, no matter what the result of the appeal, it will not affect their rights. On the other hand, the appellants contend that their payment was involuntary under the threat to issue bonds which would cast an increased burden on their property by reason of section 8 of the Improvement [516]Bond Act of 1915, and therefore in the event the appeal is determined in their favor, they could recover their payments.

Section 14(a) of the Improvement Bond Act of 1915 provides that payments of the assessments may be made under protest in like manner as any other taxes of a municipal body; however, the section applies only after the warrants and assessment list, previously issued to the contractor, have been returned to the municipality for the issuance of bonds on the unpaid assessments. Accepting appellants’ interpretation of section 8, the remedy provided for in section 14(a) would be inadequate. Therefore in determining whether appellants have barred themselves from recovery by their manner of payment, we must look to the common law rule governing payments made under duress or compulsion. (Spencer v. City of Los Angeles, 180 Cal. 103 [179 P. 163].) The rule to be applied is stated in California Jurisprudence: “However, although there seems to be a question as to the necessity of a protest under such circumstances, it has been held in a case not coming within the purview of the statutory provision relating to payments under protest, that money demanded in payment of illegal taxes, the circumstances of duress and coercion being present, could be paid under protest and recovered in an action brought for that purpose.” (24 Cal.Jur. 311.)