State ex rel. McCardy v. Nelson
| Decision Date | 07 June 1889 |
| Citation | 42 N.W. 548,41 Minn. 25 |
| Parties | State of Minnesota, ex rel. Anne M. McCardy, v. Andrew N. Nelson, County Treasurer |
| Court | Minnesota Supreme Court |
Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., presiding, overruling a demurrer.
James J. Egan and Hermon W. Phillips, for appellant.
Kueffner & Fauntleroy, for relator (respondent.)
This is an appeal from an order overruling a demurrer to an alternative writ of mandamus. It appears by the writ that, a deed of conveyance of a certain lot of land in the city of St. Paul having been made to this relator by the owners of the property, she desired to have the deed recorded in the office of the register of deeds. Under the statute referred to in the writ, it is the duty of the register of deeds to refuse to receive such instruments for record until the county auditor shall have certified that the taxes upon the land have been paid, and the auditor is not authorized to so certify until all taxes assessed against the property, and due and payable, shall have been paid to the county treasurer, and his receipt therefor produced. It also appears that on the 11th day of February, 1889, the relator tendered to the respondent the sum of $ 125.50 in payment of taxes upon the property, and demanded a receipt therefor; this being, as is alleged, the only legal taxes assessed upon this property. The tender and the receipt asked for were refused, for the reason that the further sum of $ 6.25 was not included in the tender, that sum being charged as a tax upon the property for the cleaning of snow and ice from the sidewalk in front of the lot, under a special act of the legislature passed in 1887. (Sp. Laws 1887, c. 48, §§ 8-11.) It is claimed that this tax is upon its face illegal, for reasons which we need not now state. The refusal of the auditor also to make the certificate necessary to entitle the deed to record is recited in the writ. The command of the writ is, in substance, that the respondent accept the tender of $ 125.50, and thereupon that he issue his receipt stating that all taxes against this land are paid.
This proceeding by the extraordinary writ of mandamus should not be resorted to as a remedy under the circumstances here presented, unless, the ordinary legal remedies being unavailable or inadequate, it is necessary for the protection of the substantial rights of the relator. Not only has the statute prescribed a specific mode in accordance with which defences may be made to tax proceedings, and the validity of a tax be judicially and finally determined, but a determination in this proceeding against the county treasurer alone, the county not being a party, would be of no effect as an adjudication concerning the validity of the tax in question; and if the relator proposes to resist the payment the same questions here involved must be tried again upon her answer being interposed in the tax proceedings, as prescribed by statute. We need not advert to other considerations upon this point. It is only claimed that mandamus is a proper remedy because there is no other. We are of the opinion that the remedy here invoked was unnecessary for the protection of the relator; that she might have paid the alleged illegal tax of $ 6.25 under protest, for the purpose of enabling her to get her deed recorded; and that if in fact the tax was illegal, she might have recovered it back in an action for that purpose. If so, this writ should not have been allowed.
The conclusion thus indicated rests upon the ground that the payment, under the circumstances stated, would have been virtually a compulsory one, and not voluntary. It may be stated as a general proposition that a payment under compulsion, of money unlawfully demanded, does not conclude the party paying; he by proper protest indicating that he pays by compulsion, and not voluntarily. He may recover it again. The difficulty lies in determining whether in any particular case the payment is to be deemed as compulsory or voluntary. An examination of the authorities and a consideration of the principle upon which they obviously rest, leaves no doubt in our minds concerning the question here presented. It has always been considered that the payment, under protest, of an illegal tax or demand, to an officer armed with a warrant authorizing him to enforce the payment by imprisonment or by seizure and sale of property, and who is about to so exercise his authority, is not voluntary, and may be recovered back. County of Dakota v. Parker, 7 Minn. 207, (267;) Preston v. City of Boston, 12 Pick. 7; Seeley v. Town of Westport, 47 Conn. 294; Allen v. City of Burlington, 45 Vt. 202; Nickodemus v. East Saginaw, 25 Mich. 456; Ruggles v. City of Fond du Lac, 53 Wis. 436, (10 N.W. 565;) Smith v. Farrelly, 52 Cal. 77; Guy v. Washburn, 23 Cal. 111; Grim v. Weissenberg School-Dist., 57 Pa. 433. Nor is this proposition applicable merely with respect to personal property. The same is true, as it obviously ought to be, when real property is involved. See cases above cited, particularly Seeley v. Town of Westport, supra; Guy v. Washburn, supra; also Stephan v. Daniels, 27 Ohio St. 527; Valentine v. City of St. Paul, 34 Minn. 446, (26 N.W. 457.) Nor is it necessary, in order to constitute compulsory as distinguished from a voluntary payment, that the unlawful demand be made by an officer who is prepared to enforce it by process. There may be that kind and degree of necessity or coercion which justifies and virtually requires payment to be made of the illegal demands of a private person who has it in his power to seriously prejudice the property rights of another, and to impose upon the latter the risk of suffering...
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