Beachlawn Bldg. Corp. v. City of St. Clair Shores

• Decision Date: 09 May 1963
• Docket Number: No. 57,57
• Citation: 121 N.W.2d 427,370 Mich. 128
• Parties: BEACHLAWN BUILDING CORPORATION, a Michigan corporation, Plaintiff and Appellant, v. CITY OF ST. CLAIR SHORES, a Michigan municipal corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 427

121 N.W.2d 427

370 Mich. 128

BEACHLAWN BUILDING CORPORATION, a Michigan corporation Plaintiff and Appellant, v. CITY OF ST. CLAIR SHORES, a Michigan municipal corporation Defendant and Appellee.

No. 57.

Supreme Court of Michigan.

May 9, 1963.

Schuur & Keating, Detroit, for plaintiff and appellant.

John H. Yoe, Detroit, for defendant and appellee.

Before the Entire Bench.

DETHMERS, Justice.

Plaintiff was engaged in the business of constructing residences in defendant city from 1954 through 1959. A city ordinance required a builder to obtain a building permit and to pay a fee therefor before commencement of construction of a house. Plaintiff had been complying with those requirements.

In October of 1954 and again in July of 1956 the ordinance was amended, both times to increase the fees for building permits. In Merrelli v. City of St. Clair Shores, 355 Mich. 575, 96 N.W.2d 144, this Court held the amendments and charge of fees thereunder to be invalid because the revenue derived therefrom was in excess of the cost of issuing the license and regulating the business to which it applied.

Plaintiff obtained its building permits through an agent. He would submit the building plans to defendant's building department for approval. Later he would be advised by defendant's employees as to the amount of the fee, based on their estimate of the building cost, pay the fee, and receive the permit. Plaintiff then would reimburse him for the amount of the fee.

When the agent of plaintiff, after the first increase in fees became effective, sought a permit one of defendant's clerks informed him of the increase. The agent protested. Thereafter he tendered a check for the amount, based on defendant's building cost estimate, which would have been due under the former ordinance requirement. This was refused by defendant's employee. Next, the agent tendered a check for the increased amount and sought to pay under protest, but he was informed by defendant's employee that there was no provision for such payment and that a check marked as paid under protest would be refused. The agent then paid the full amount and received the permit. The same procedure occurred the second time the fees were increased. The agent testified that he followed that course repeatedly on other occasions, although not every time, when he obtained permits during the 4 1/2 year period here involved. He did not file written protests.

This suit is to recover the excess in payments made by plaintiff to defendant as fees for such permits during the period involved. There is no dispute between the parties that to be recoverable the payments must have been made involuntarily Thompson v. City of Detroit, 114 Mich 502, 72 N.W. 320. Finding that plaintiff paid the excess voluntarily, the court directed a verdict for defendant. Plaintiff appeals.

The question is whether plaintiff's payments were voluntary or under compulsion or duress so as to be involuntary.

C.L.1948, § 211.53 (Stat.Ann.1960 Rev. § 7.97), provides for payment of taxes or special assessments on personal or real property under protest, in writing, and for suit, within 30 days, to recover same. It has no application to permit fees. As in Thompson, so here we may say that the question must be determined on general principles rather than any reliance upon statute. We hold that under the facts in this case, as above noted, plaintiff did everything he reasonably could be required to do to effectuate a payment under protest, which, in effect, defendant declined to permit.

Defendant's reliance for determination of the voluntariness of plaintiff's payments rests in large measure upon Baldwin v. Village of Chesaning, 188 Mich. 17, 154 N.W. 84. This Court there affirmed, by reason of its equal division, the trial court's direction of verdict for defendant village. In that case, plaintiff, a saloonkeeper, after selling his business, sued to recover $1,000 representing the $500 fee he had paid each of 2 years under an invalid ordinance for a saloonkeeper's license. The nature of the invalidity does not expressly appear, but in the 4-Justice affirming opinion it is said that the case is governed by Betts v. Village of Reading, 93 Mich. 77, 52 N.W. 940. In the latter, plaintiff's payments of saloon license fees were made under a void ordinance which provided for issuance of liquor sales licenses prohibited by the village charter. The court held that plaintiff was not ignorant of the law or his rights under it and, therefore, it could not be said that he paid under duress, distinguishing that case, in that respect, from Cribbs v. Sowle, 87 Mich. 340, 49 N.W. 587. So, too, in City of Detroit v. Martin, 34 Mich. 170, in which plaintiff real property owner sued to recover payment under protest of a tax totally void on its face, this Court held that plaintiff's knowledge of the facts and presumably of the law rendered the payment voluntary and unrecoverable. It was also said that if the invalidity of the tax were such that a tax sale thereon would not constitute a cloud on the title, payment of the tax must be held voluntary and even payment under protest would not render it involuntary. This was discredited and held to be dictum in Thompson v. City of Detroit, supra. These cases, other than...