City of Detroit v. Martin

• Decision Date: 06 June 1876
• Citation: 34 Mich. 170
• Court: Michigan Supreme Court
• Parties: The City of Detroit v. Jacob Martin

34 Mich. 170

The City of Detroit v. Jacob Martin

Supreme Court of Michigan

June 6, 1876

Heard April 19, 1876

Error to Superior Court of Detroit.

Judgment reversed, and a judgment entered upon the special verdict in favor of the city, plaintiff in error to recover costs in both courts.

D. C Holbrook, for plaintiff in error, cited: Fleetwood v. City of N. Y., 2 Sandf. 485; Forrest v. Mayor of N. Y., 13 Abbott 352; N. Y. & H. R. R. Co. v. Marsh, 12 N. Y., 308; Lott v. Swezey, 29 Barb. 87; 11 N. Y., 99; Cooley on Taxation, 565-70.

Brennan & Donnelly, and G. V. N. Lothrop, for defendant in error cited: Nicodemus v. East Saginaw, 25 Mich. 456; First Nat. Bank, etc., v. Watkins, 21 Mich. 483; 2 Dillon Mun. Corp., 855 and notes; Jenks v. Lima, 17 Ind. 226; Preston v. Boston, 12 Pick. 7; Cook v. Boston, 9 Allen 393; 13 Gray 476; Baker v. Cincinnati, 11 Ohio 534; Taylor v. Board of Health, 31 Penn. 73; Green v. School Dist., 57 Penn. St., 423; Cooley on Taxation, 565-70; Atwell v. Zeluff, 26 Mich. 118; McKee v. Campbell, 27 Mich. 497; Loud v. Charleston, 99 Mass. 208; Arnold v. Cambridge, 106 Mass. 352; Hunnewell v. Boston, Ib., 350; Hayes v. Hogan, 5 Cal. 241; Faulkner v. Hunt, 16 Cal. 167; Guy v. Washburn, 23 Cal. 113; Dillon Mun. Corp., 841 and note.

OPINION

Marston, J:

Plaintiff below, defendant in error, was the owner of a certain lot in the city of Detroit upon which there was assessed ninety-six dollars and fifty-four cents on account of the opening of Labrosse street in said city. After the assessment was made he received a written notice signed by the city attorney notifying him of the fact and requesting him to pay the amount thereof within sixty days from the date of service of the notice, and that in case of failure, at the expiration of that time the property so assessed would be advertised and sold by the receiver of taxes of said city to pay said assessment. After the expiration of the sixty days, and on the 3d of March, 1874, he paid said assessment, to prevent the threatened sale, under protest, and had the protest entered upon the books of the treasurer. Plaintiff remonstrated against the opening of said street, and prior to the commencement of suit in this case petitioned the common council of said city to repay him the amount with interest, which was refused. The provision of the city charter under which said assessment was levied and collected was by this court, at the June term thereof, 1875, declared unconstitutional, in the case of Paul v. The City of Detroit, 32 Mich. 108.

Plaintiff brought assumpsit to recover back the amount so paid, and the above facts were found by the jury in a special verdict, upon which judgment was rendered for the plaintiff. The city brought error, alleging that the payment was a voluntary one; that plaintiff was not entitled to recover, and that the facts found did nor sustain the judgment.

As the case has been presented in this court upon the question whether the payment was voluntarily made or not, it would be well for us to understand clearly, not only the circumstances under which the money was paid, but the legal result or effect upon plaintiff's rights in case he had not paid this money, as by so doing we will be better enabled to determine the question submitted.

Plaintiff was the owner of the lot assessed. The amount assessed thereon was illegal and void, the statute under which such assessment was made having been unconstitutional. The city, through its proper officers, threatened to sell the lot if the assessment was not paid. To prevent this threatened sale the money was paid under protest. Such are the facts in brief.

If not paid and the property sold, what would have been the legal effect of such sale?

If plaintiff had not paid, we may assume the threat would have been carried out and the property sold. How would such sale have affected plaintiff's right or title thereto? Would such sale have constituted a cloud upon his title? Assuming that it would, in order to prevent this, he could have paid the amount under protest, and afterwards have maintained an action to recover it back. If a sale under the facts stated would not have constituted a cloud upon his title, then it may be at least doubtful whether the plaintiff has any remedy, as it is not pretended there was any fraud, duress or seizure of his goods, either actual or threatened, or that the officers of the city had any authority to seize them. "A cloud upon one's title is something which constitutes an apparent incumbrance upon it, or an apparent defect in it; something that shows prima facie some right of a third party, either to the whole or some interest in it. An illegal tax may or may not constitute such a cloud. If the alleged tax has no semblance of legality, if upon the face of the proceedings it is wholly unwarranted by law, or for any reason totally void, so that any person inspecting the record and comparing, it with the law is at once apprised of the illegality, the tax, it would seem, could neither constitute an incumbrance nor an apparent defect of title, and therefore in law could constitute no cloud."--Cooley on Taxation, 542.

Under the facts found in this case, and the law applicable thereto, the sale and conveyance thereunder would not have constituted a cloud upon plaintiff's title, even although by the charter assessments may be declared a lien upon the land, and the conveyance prima facie evidence of the regularity of the proceedings, because from an inspection of the conveyance, which would recite the proceedings, and of the record, it would at once appear that the assessment was wholly unwarranted by law and totally void.

The plaintiff, at the time he paid this tax, paid it with full knowledge of all the facts and circumstances. He is conclusively presumed to know the law applicable thereto. He is presumed to have known at the time he paid this tax that the statute under which the assessment was made was void, and that a sale of the premises therefor would constitute no cloud upon his title, and that he could not be injured by such sale.

Such being the legal conclusion from the facts found, was the payment voluntary or involuntary?

There is no doubt but that where the parties do not stand upon equal terms, as where the person making the demand has the goods of another and refuses to deliver them except upon payment of an illegal exaction, as in Parker v. The Great Western Railway Co., 7 M. & G., 253; or where the plaintiff was entitled to a license, and the defendant to grant it, but refused to deliver it except upon payment of a sum of money he was not entitled to, as in Morgan v. Palmer, 2 B. & C., 729; or where the payment is made to release personal property from seizure, either actual or threatened, where the person making the threat has the then present ability to make good his threat, as in Atwell v. Zeluff, 26 Mich. 118; and perhaps where a sale of the real estate assessed would constitute a could upon the title,--in all such cases, the party pays under compulsion and may afterwards in an action of assumpsit recover back the amount of the illegal exaction.

The plaintiff, however, does not bring himself within the principles of any of these cases. He knew all the facts at the time he made the payment; none of his property was held by the party making the demand; no seizure had been made or threatened, nor did it appear that the officer making the demand, or that any officer, had the power to compel in any way payment of the amount, except by a threatened sale of the property assessed, and which if carried out could injure no one, unless it might have been the purchaser. The threat therefore was a harmless one. It could not have alarmed the plaintiff, as it could not have affected his rights. If carried out, the sale would have had no force, and the conveyance thereunder no validity. The assessment was a mere nullity, and could not have been enforced in any way, there being no statute authorizing it. Yet the plaintiff, knowing all this, voluntarily went to the treasurer's office and paid the amount claimed. The case "stands on no higher ground than it would if the plaintiff, when the tax was demanded of him by the collector, had said to him: 'I know your tax is illegal and void; I am under no obligation to pay it, but I shall pay it under protest, and with an intention to sue for and recover it.' * * * All the authorities agree that money paid under such circumstances cannot be recovered."--Sheldon v. South School District, 24 Conn. 88; Bulkley v. Stewart, 1 Day 130.

Where taxes had been levied under an unconstitutional statute demanded and paid for a series of years, and the statute being then held void, suit was brought to recover the amount paid, Lowrie, J., said: "We state the case as one of a voluntary payment of taxes, because there is no pretense that the defendant's officers did any more than demands the tax under a supposed authority of the law; and there is no more a compulsion than where an individual demands a supposed right. The threat that is supposed to underlie such demands is a harmless one: that in case of refusal the appropriate legal remedies will be resorted to. It is supposed that there was real compulsion, because no certificate would be granted by the health officer to the ships without the payment of the tax, and without the certificate no entry would be allowed by the custom house officers. If this be the compulsion relied on it is vain, for it proceeded from the federal officers, and not from the defendant, who could have nothing to do with it.--Taylor v. Board...