Appeal
from Circuit Court, Union County; J. W. Knowles, Judge.
Action
by the Pacific Live Stock Company against George T. Cochran.
Judgment for defendant, and plaintiff appeals. Affirmed.
The
complaint alleges that defendant is a member of the board of
control of the state of Oregon, now designated as the state
water board, and superintendent of water division No. 2, and
recites:
"That
prior to any of the times herein mentioned the said board
of control of the state of Oregon determined to make a
determination of the rights of all persons to the waters of
Silvies river, and thereupon duly published notice
requiring all parties claiming any rights therein to file
statements of their claims and stating the time when the
testimony would be taken, all in accordance with the
provisions of section 6636 of the General Laws of Oregon
and a copy of said notice was duly served upon plaintiff by
registered mail, as provided by section 6637 of said Laws
of Oregon, and which notice required that said statement be
filed with the defendant above named. * * * Thereafter and
on the 28th day of July, 1913, plaintiff duly delivered to
the said defendant as such superintendent of water division
No. 2 its statement of its claims in and to the waters of
Silvies river duly sworn to and containing all of the
matters required by section 6638 of the Laws of Oregon, and
thereupon requested the said defendant to receive and file
the same. * * * That said defendant then and there demanded
of the said plaintiff the payment of the sum of $401.44, as
an irrigation fee, and $1 as a certificate fee, before he
would receive or file the said statement, and the said
defendant then and there refused to file the said statement
unless the said sum was paid to him. That said plaintiff
thereupon insisted that the said statement be received and
filed by him without the payment of the said sum, but the
said defendant refused to file or receive the same and
illegally demanded and insisted upon the payment of the
said sum as aforesaid. * * * That the said plaintiff
protested against the payment of the said sum on the ground
that the same was illegal, extortionate, and deprived the
said plaintiff of its right to set up its rights and defend
its rights in the matter of the said adjudication of the
water rights of said river, and deprived plaintiff of its
property without due process of law, and deprived it of the
equal protection of the law and prevented it from defending
its rights without paying an exorbitant sum of money to the
said defendant; and thereupon the said plaintiff under
protest and involuntarily, and by reason of the compulsion
of the said defendant, paid the said sum to the said
defendant, and the said defendant took and received the
same from the said plaintiff, and thereupon filed the said
claim as aforesaid. At the time of the said payment the
said plaintiff notified the said defendant that the said
payment was made involuntarily and under protest, but the
said defendant still does retain the said money and the
whole thereof, and refuses to pay the same to plaintiff
and no part thereof has been repaid by defendant to
plaintiff. * * * That the said payment was made
involuntarily and under compulsion and by reason of the
illegal demands of the defendant as aforesaid, and his
refusal to file the said document unless the said demands
were complied with. * * * That the said demand of the said
defendant was wholly illegal and extortionate, and the said
sum so demanded was not a proper fee or any fee for the
filing of the said paper, and the said amount so demanded
as aforesaid as a condition of filing said paper was
illegal and the amount thereof was grossly and entirely out
of all proportion to the services required by the said
defendant in receiving and filing the said document, and
the said amount was not a proper or any fee for the filing
of the said document, but was an arbitrary tax and
imposition placed upon plaintiff illegally preventing it
from defending the proceedings which it was cited to defend
as aforesaid."
There
was a prayer for judgment against defendant for $403.44. The
defendant demurred generally, and, the demurrer having been
sustained, plaintiff appeals.
Edward F. Treadwell, of San Francisco, Cal., and John L
Rand, of Baker, for appellant. A. M. Crawford, Atty., Gen
for respondent.
McBRIDE
C.J. (after stating the facts as above).
The
judge of the circuit court made and filed a lengthy and
exhaustive opinion, which, with certain exceptions
hereinafter noted, we adopt as the opinion of this court. It
is as follows:
"The above cause is before the court for decision on
demurrer to the complaint. The allegations of the complaint
are familiar to the attorneys for both parties, and hence it
is unnecessary to set forth the allegations of the complaint
in this opinion. Suffice it to say that this is an action to
recover money, which has been paid to the defendant, as one
of the water superintendents of the state, and a member of
the board of control, and which was paid to him under and by
virtue of the provisions of section
6641 , L. O. L., which provides as follows: 'At the time
of the submission of proof of appropriation, or at the time
of taking of testimony for the determination of rights to
water, the division superintendent shall collect from each of
the claimants or owners, a fee of $1.00 for the purpose of
recording the water rights certificate, when issued in the
office of the county clerk, together with the additional fee
of 15¢ for each acre of irrigated land up to and including
100 acres, and 5¢ per acre for each acre in excess of 100
acres up to and including 1,000 acres, and 1¢ for each acre
in excess of 1,000. * * * All fees collected by the division
superintendent shall be accounted for at the following
regular meeting of the board of control and paid by such
board into the state treasury, except, however, those fees
due, or to be paid to the county clerk.' A demurrer has
been filed to the complaint upon the following grounds
'That the complaint fails to state facts sufficient to
constitute cause of action against the
defendant, in that the complaint shows upon its face that all
the fees alleged to have been collected by the defendant,
were collected under and pursuant to the provisions of
section 6641, L. O. L., and hence were legally collected, and
turned over to the state treasury of the state of
Oregon.'
"It
is contended by counsel for the defendant, in support of the
demurrer, that the money paid to the defendant was a
voluntary payment, and hence cannot be recovered back. It is
alleged in the complaint that the money paid was paid under
compulsion. However, I think that the complaint clearly shows
that the only compulsion was the provisions of the water code
requiring the same to be paid. Of course, it was optional
with the plaintiff, whether it paid the money or not, that
is, it was optional with the plaintiff whether it filed its
claim; but if it did not file its claim, under the law its
right to have the water it was entitled to have adjudicated
ceased, and it could not afterwards have its right
adjudicated. Under these circumstances, I do not believe that
the payment was such a voluntary payment that it could not be
recovered. Under the authorities, if the party paying the
money has the right to contest the payment as a defendant in
the case or has the right to enjoin the collection of the
money without jeopardizing any of his rights, a payment made
under such circumstances is a voluntary payment, and cannot
be recovered. Such is the doctrine of the case of Johnson
v. Crook County, 53 Or. 329, 100 P. 294, 133 Am. St.
Rep. 834, and also the case of Trower v. City and County
of San Francisco, 152 Cal. 479, 92 P. 1025, 15 L. R. A.
(N. S.) 183. The authorities also hold that where the delay
will prejudice the rights of a party because payment must be
made at a certain time, as a condition precedent to filing a
claim or presenting proofs, etc., and where illegal fees are
exacted by one in official authority, preventing the
immediate exercise of an undoubted right, except on their
payment, they may be recovered, although the party may have
resorted to mandamus proceedings to compel the filing without
payment. Trower v. City and County of San
Francisco, supra; State v. Gorman, 40 Minn. 232, 41
N.W. 948, 2 L. R. A. 701; Fatjo v. Pfister, 117 Cal.
83, 48 P. 1012. In the case at bar, the plaintiff was
compelled to make the payment on or before the 22d day of
August, 1912, the time set by the board for the submission of
proof of appropriation, and, if it did not pay the fees on or
before that time, it could not submit its proof. I think that
the payment, under such circumstances, was an involuntary
payment and therefore can be recovered.
"Again
it is contended by counsel for the defendant, in support of
their demurrer to the complaint, that this action should be
brought against the state, instead of against the defendant
whose duty it is, after receiving the money, to pay the same
into the state treasury. The authorities seem to hold that
although a tax or exaction may be illegal, yet if the
officer, whose duty it is to collect the tax collects the
same and turns it into the state treasury, the action should
be brought against the state or municipality, instead of the
officer. Eugene v. Lane County, 50 Or. 468, 93 P
255; Yamhill County v. Foster, 53 Or. 124, 99 P.
286. The presumption of law is that official duty has been
regularly performed. Subdivision 15, § 799, L. O. L.;
Stephenson v. Van Blokland, 60 Or. 247, 118 P. 1026;
Clark v. City of Salem, 61 Or. 116, 121 P. 416, Ann.
Cas. 1914B, 205. ...
