St. Anthony & Dakota Elevator Company v. Bottineau County
| Decision Date | 29 May 1900 |
| Citation | 83 N.W. 212,9 N.D. 346 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Bottineau County; Morgan, J. Action by the St. Anthony & Dakota Elevator Company against August Soucie and Bottineau County. Judgment for plaintiff. Defendants appeal.
Affirmed.
Bosard & Bosard, for appellant.
Illegal taxes voluntarily paid, even though paid under protest cannot be recovered back. 2 Desty on Tax'n, 796; Sonoma County Tax Case, 13 F. 791; Union Pacific Ry. Co., 98 U.S 543; Lamborn v. County, 97 U.S. 181; Wabaunsee County v. Walker, 18 Kan. 431; Babcock v Fondulac, 16 N.W. 625; St. Joseph County v. Ruckman, 57 Ind. 96; De Baker v. Carillo, 52 Cal. 473; Bucknall v. Story, 46 Cal. 580; Shane v. St. Paul, 26 Minn. 543; Powell v. St. Croix County, 46 Wis. 210; Sanford v. New york, 33 Barb. 147; Budge v. City, 1 N.D. 309. Payment is not compulsory unless made to release property from an actual existing duress imposed by the payee. Baltimore v. Lefferman, 45 Am. Dec. 146. Duress consists in unlawful detention of the property of a person. § 3845, Rev. Codes. And payment is not regarded as compulsory unless made to relieve property from actual duress. Elson v. Chicago, 89 Am. Dec. 363; Vick v. Shinn, 4 Am. St. Rep. 26; Chaflin v. McDonough, 84 Am. Dec. 54; Town v. Ackerman, 15 Am. Rep. 323. The advertising of respondent's property for sale by the treasurer amounted to a mere threat to seize and sell and was not sufficient duress to render the payment voluntary. Sonoma County Tax Case, 13 F. 789; Detroit v. Martin, 34 Mich. 173; Williams v. Corcoran, 46 Cal. 556; Buchnall v. Story, 46 Cal. 589.
Cochrane & Corliss, for respondent.
The facts show that the county treasurer had distrained the plaintiff's elevator for the tax, had advertised the same for sale, and was about to sell it when a written protest was served upon him, and despite such protest he persisted in offering the elevator for sale and then, and only then, did plaintiff pay. This was not a voluntary payment. Joanmin v. Ogilvie, 52 N.W. 217; Powder River Cattle Co. v. Board of Com's'rs 45 F. 323; Defremery v. Austin, 53 Cal. 380; Breucher v. Village, 4 N.E. 272; Babcock v. Township, 31 N.W. 423; Winzer v. City, 27 N.W. 241; Shoup v. Willis, 6 P. 24; Erskine v. Van Arsdale, 15 Wall. 77; Dunnell Mfg. Co. v. Newell, 2 A. 766; Union Pacific Ry. Co. v. Com's'rs, 98 U.S. 541. Payment of taxes to a collector who has a tax warrant in the form prescribed by law, is to be regarded as compulsory payment, and if the taxes were assessed without authority they may be recovered back although the party made no protest before payment. Glass Co. v. Boston, 4 Metc. 181; Grim v. School District, 57 Pa. 434; Allen v. Burleigh, 45 Vt. 202. It is settled doctrine that where an illegal and void tax is paid to prevent a seizure and sale of the taxpayer's property, the one having apparent, colorable, or formal authority to make such seizure and sale, if the danger is imminent, and the payment is made under protest, the money so paid may be recovered back. 45 Am. Dec. 164, note; Creamer v. Inhabitants, 40 A. 555; Joyner v. School District, 3 Cush. 567; Stowe v. Town, 41 A. 1024; Thompson v. City, 72 N.W. 320; Miner Lumber Co. v. City, 56 N.W. 926; Board of Com's'rs v. Kansas City, 46 P. 1013. It will be observed that among some of the cases above cited, are cases which hold that a mere protest and notice that suit will be brought suffice to make a payment involuntary. It is clearly the rule that if process to collect the tax must inevitably issue and distraint of the taxpayer's goods follow, the party need not wait the issuing of such process but may pay the tax in advance of the issue thereof, provided he serves a protest and declares his purpose to sue to recover back the tax. Atchison Ry. Co. v. Com's'rs, 28 P. 999; Atchison Ry. Co. v. City, 28 P. 1000; Rumford Chemical Works v. Reay, 34 A. 814; Allen v. City, 45 Vt. 202; Kansas Pacific Ry. Co., v. Com's'rs, 16 Kan. 587. That the payment is under duress when the property has been actually seized and is about to be sold, is recognized in all the cases. Lindsay v. Allen, 36 A. 840; Roedel v. Village, 66 N.W. 386. When a taxpayer is threatened with seizure of goods for the satisfaction of an illegal tax, he is without remedy. If the goods are seized he can not replevin them. If the goods are sold a valid title passes to the purchaser. No suit in equity will lie to enjoin the collection of a personal tax. The law considers that a person has an adequate remedy in his right to recover back the illegal tax. Powder River Cattle Co. v. Com's'rs, 45 F. 323; Dows v. City, 11 Wall. 108; Hannermikle v. Georgetown, 15 Wall. 547; Cooley on Tax'n, 538; Laird v. Pine Co., 75 N.W. 723; Youngblood v. Sexton, 32 Mich. 406; Taylor v. Ry. Co., 88 F. 350; Ogden City v. Armstrong, 18 S.Ct. 98. the officer collecting the illegal tax is liable in an action brought by the taxpayer to recover the same. Erskine v. Van Arsdale, 15 Wall. 75; Western Union Telegraph Co. v. Mayer, 20 Ohio St. 521; Steven v. Daniels, 27 Ohio St. 527; Dunnell Mfg. Co. v. Newell, 2 A. 766; Shoup v. Willis, 6 P. 124; Defremery v. Austin, 53 Cal. 380; Atwell v. Yeluff, 26 Mich. 120; Rumford v. Ray, 34 A. 814; Lindsay v. Allen, 36 A. 840; Wood v. Stirman, 37 Tex. 584; Powder River Cattle Co. v. Com's'rs, 29 P. 361; Board v. Searight, 31 P. 268. The county into whose treasury the officer pays the money is also liable for the illegal tax as well as the officer. Dubois v. Com's'rs, 37 N.E. 1056; Cooley, Tax'n, 565; Mecham v. Newport, 40 A. 729; Creamer v. Bremen, 40 A. 555.
Action by the St. Anthony & Dakota Elevator Company to recover from Bottineau county and from August Soucie, as treasurer of Bottineau county, certain money paid by said company to said treasurer as and for taxes assessed against said company in said county in the year 1895. The case was tried to the court, and plaintiff was successful. The defendants bring the case to this court, but the only issue of fact that this court is asked to retry is whether or not the money so paid for taxes was paid under compulsion. The illegality of the tax is conceded. The testimony upon the controverted issue is uncontradicted, is brief, and may be thus summarized: "On the 30th day of December, 1896, the said treasurer served upon the agent of plaintiff at its elevator in the Village of Bottineau a notice as follows: The possession of the agent was in no manner disturbed by the treasurer, and the agent exercised full control of the elevator at all times to the date fixed for the sale. Notice of the sale was published as required by law. On the date fixed for the sale, January 11, 1897, and at the hour specified, the said treasurer offered the elevator for sale at the front door of the court house in said Village of Bottineau, at public auction. The agent of the plaintiff was present, and when bids were called for he stated to the treasurer that the taxes were illegal; and, the treasurer continuing to cry the sale, he handed him a written protest. This document was evidently prepared with care. It alleges that the assessment against the elevator company was illegal, and that the company was not the owner of any of the property upon which the alleged tax was extended. It protests against being required to pay the same, and declares that, if compelled to pay the same in order to preserve its property, the elevator company will at once bring action against the treasurer and against the county to recover the amount so paid. When the protest was presented to the treasurer, he read sufficient of it to determine what it was, and then proceeded to cry the sale. Thereupon the agent paid the tax claimed. The treasurer had received no bid for the elevator; nor, so far as disclosed, was there any one present who desired to make a bid. The treasurer fully intended to sell the elevator as advertised, if the taxes were not paid, and he could make a sale. Under these facts was the money paid under compulsion?
That illegal taxes, voluntarily paid, although paid under protest cannot be recovered, is elementary, and is conceded in this...
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