Harbeck v. City of Sioux City

• Decision Date: 17 March 1925
• Docket Number: 36427
• Citation: 202 N.W. 507,199 Iowa 763
• Parties: L. J. HARBECK, Appellant, v. CITY OF SIOUX CITY, Appellee
• Court: Iowa Supreme Court

202 N.W. 507

199 Iowa 763

L. J. HARBECK, Appellant, v. CITY OF SIOUX CITY, Appellee

No. 36427

Supreme Court of Iowa, Des Moines

March 17, 1925

Appeal from Woodbury District Court.--A. O. WAKEFIELD, Judge.

ACTION at law, to recover money paid either by mistake or under duress. There was a demurrer to the petition, which was sustained. The plaintiff, electing to stand upon his petition, suffered judgement, and has appealed therefrom.

Reversed.

Sam G Pickus and Alfred Pizey, for appellant.

Paul Hatfield and E. G. Smith, for appellee.

EVANS J. FAVILLE, C. J., and ARTHUR and ALBERT, JJ., concur.

OPINION

EVANS J.

It appears from the petition that the plaintiff was a vendor of peanuts and pop corn, and maintained a stand on or near to a sidewalk in the city of Sioux City, and upon premises leased by him from one Nelson. There was a city ordinance in force which required the payment of a license fee for such privilege, of $ 25 per year, and no more. The plaintiff entered upon such business about April 1, 1918. He alleged in his petition the following:

"That, on or about the 1st day of April, A. D. 1918, this plaintiff was informed by the then commissioner of public safety that the license fee was $ 25 per month, and that, unless he, the said plaintiff, paid the same, his said place of business would be closed by the police department, and he would no longer be permitted to operate or maintain said pop corn and peanut stand; and he was also informed by said commissioner that the proper and lawful license fee was $ 25 per month; that he believed statements to be true, and because of said representations, and fearing his means of livelihood would be taken from him, he paid the sum of $ 25 for each month until the 4th day of December, A. D. 1922."

The demurrer to the petition is predicated upon the ground that the payment was voluntary, and that the plaintiff was thereby estopped from recovering the money thus paid. We have to determine, therefore, whether it appears upon the face of the petition that the payments were voluntary, within the meaning of the law.

It is a rule which has often been applied that the payment of money into a public treasury, where the payer is under no other stress or menace than that of a personal action against him for the recovery of such amount, then the payment is voluntary, rather than under duress. The appellee relies upon this line of cases.

It is also the rule that, where a person or municipality exacts and receives more than is legally due from the payer, while such payer is under the menace of injurious interference with or seizure of his property or person, such payment will not be deemed voluntary.

If the payer be menaced only with a personal action against him, he is thereby presented with a sufficient opportunity to test the legality of the demand against him. If he chooses...