Reynolds v. City & County of San Francisco

Opinion

CHRISTIAN, J. Respondent, Raymond J. Reynolds, desiring to continue in office as a judge of the municipal court, paid a filing fee in the sum of $346.05 upon presenting his candidacy papers to the registrar of voters. The fee was paid by respondent without protest.

Thereafter, on May 31, 1974, the Supreme Court of California in Donovan v. Brown (1974) 11 Cal.3d 571 [115 Cal.Rptr. 41, 524 P.2d 137], and later in Knoll v. Davidson (1974) 12 Cal.3d 335 [116 Cal.Rptr. 97, 525 P.2d 1273], declared unconstitutional Elections Code sections 6551, 6552, 6553, 6554 and 6555, under which the filing fee had been required. On September 5, 1974, respondent claimed a refund of the filing fee; the claim was denied, and respondent sued in the small claims court. Respondent prevailed at trial; the city appealed to the superior court, and the appeal was later certified to this court.

[101]Appellant contends that because respondent made no protest when he paid the fee he should not be permitted to recover even though the statute* authorizing the fee was later declared unconstitutional. Conceding that he paid the fee without protest, respondent argues that he nevertheless paid under coercion, and therefore should be allowed recovery.

One may not recover under a theory of unjust enrichment a payment made to a unit of government unless it was made under coercion (Brumagim v. Tillinghast (1861) 18 Cal. 265). A person who, at the time of payment misinterprets the law to his detriment does not thereby gain a right of recovery; he must have paid as a result of compulsion. (Id., at pp. 270-271.)

Thus, in Garibaldi v. City of Daly City (1943) 61 Cal.App.2d 514 [143 P.2d 397], plaintiffs challenged a special assessment levied by the city. Plaintiffs paid the assessment under a threat that bonds would be issued against the property. Holding that the plaintiff had no right to recovery, the court said that even if the city employed duress, a protest by plaintiff was required. “While it is true that in California certain cases have held that payments made under duress or compulsion without a formal protest are recoverable, such cases are distinguishable from the one before us. All those which independent research has disclosed involve sets of facts in which a formal protest would have been unavailing and in which the collector was aware of the claimed invalidity of the, tax collected. ... A protest serves not only to warn the recipient that he must be prepared to refund the money and must guide his acts accordingly, but also to make the recipient aware of the nature of the claimed illegality. Where, as in the cited cases, the collector is aware of the claimed illegality, either by other protests of similarly situated individuals or the forceful nature of the collection method, the collector can protect himself.” (Id., at pp. 516-517.)