Canfield Salt & Lumber Co. v. Township of Manistee

McGrath, C. J. The property of plaintiff wafe seized to satisfy a tax assessed against John Canfield.1 Plaintiff then paid under protest, and brings assumpsit against the township to recover back the money so paid. The statute (Act No. 200, Laws of. 1891, § 42) provides that— “ Any person * * * may pay any tax, whether levied on personal or real property, under protest, to the township treasurer, specifying at the time, in writing signed by him, the grounds of such protest. * * * The person paying under such protest may * * * sue the township for the amount paid, and recover if the tax is shown to be illegal for the reasons specified in such protest.” This statute does not avail plaintiff. It does not attack the tax as it appeared upon the roll, even if it, a stranger to the tax, could do so. It insists that the logs seized were cut from its lands, and did not, either at the time of assessment or seizure, belong' to the person against whom the tax was assessed. Its complaint is of an illegal seizure of its property, upon which no lien for the tax existed, and upon a roll imposing a valid tax against another. The statutory right of recovery exists only where — 468 — the tax itself is shown to be illegal. The illegality of which plaintiff complains is in the proceeding to collect the tax, and not in the tax itself. At the common law, defendant could only be held for the amount of the tax actually received by it. The statute makes it the duty of the treasurer to pay over the amount of t}ie State and county taxes to the county treasurer within one week after the time specified in the warrant. In the absence of statutory provision extending its liability, the township could not be held for the money so paid over. Cooley, Tax’n (2d ed.), 806. The present case is not within the statute, and plaintiff’s right to recover against the township for any part of the money paid must be determined by common-law rules. The property seized consisted of logs in plaintiff’s storage booms. The township treasurer had constructive possession only, and there- was no prospect of the removal of 'the property, or danger of its injury or destruction. Plaintiff insists that the logs were cut from its lands, and that it was the sole and absolute owner thereof. The tax was a personal tax. It was assessed against John Canfield.1 The warrant did not command or authorize the township treasurer to satisfy the tax from plaintiff’s property. No duty was enjoined upon him to seize that property, and no obligation rested upon plaintiff to pay that tax. The seizure was not by virtue of the warrant, and the treasurer acted without color of authority. Plaintiff was fully advised of all the facts. It had another and ample remedy, and there were no special circumstances which rendered such remedy inadequate' or unavailable. Under such circumstances, the payment to the treasurer cannot" be said to have been involuntary. As is said by Mr. Cooley, many payments are held to be — 469 — voluntary which are made unwillingly, and only as a choice of evils or of risks. Cooley, Taxhi (2d ed.), 811. The question of what shall constitute such duress or compulsion or coercion as shall make a payment involuntary, so as to enable the party paying to recover back the money so paid, has been much discussed. In most cases, however, the collector has been armed with a warrant directed against the party making a payment, under statutes which prohibited replevin. In Knibbs v. Hall, 1 Esp. 84, it was held that a threat of distress for rent is not duress, because the party may replevy the goods distrained, and try the question of liability at law. In Manufacturing Co. v. Inhabitants of Amesbury, 17 Mass. 461, and in Preston v. City of Boston, 12 Pick. 14, it was held that when a party not liable to taxation is called upon peremptorily'to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice, and, by showing that he is not liable, recover it back as money had and received. In Glass Co. v. City of Boston, 4 Metc. 181, 187, it is said that— “ If a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterwards allege such payment to have been made by compulsion, and recover back the money, even though he should protest at the lime of such payment that he was not legally bound to pay the same. The reason of the rule, ahd its propriety, are quite obvious when applied to a case of payment upon a mere demand of money, unaccompanied with any power or authority to enforce such demand except by a' sait at law.” In that case the payment was regarded as compulsory, because of the power vested in the collector to levy — 470 — directly on the property of the party making the payment. Commissioners of Wabaunsee Co. v. Walker, 8 Kan. 431, and City of Muscatine v. Packet Co., 45 Iowa, 185, are to the same effect. In the latter case the court say: “In fact, our attention has not been called to any case where it hae been held such a payment is compulsory, unless the officer or person to whom it was made was vested ivith the power to seize property, and thus enforce payment.” In Mays v. City of Cincinnati, 1 Ohio St. 268, it was held that— “To make the payment of an illegal demand involuntary, it must be made to appear that it was made to release the person or property of the party from detention, or to prevent a seizure of either by the other party, having apparent authority to do so.” In City of Chicago v. Bank, 11 Ill. App. 165, it was held that the fact that under the statute a collector's warrant is a lien upon the property taxed from the time it comes into the hands of the collector, does not constitute duress or its equivalent. In Merrill v. Austin, 53 Cal. 379, it was held that the payment was a voluntary payment, because the collector was not then in a position to enforce collection by a sale of plaintiff's property. In the case of De La Cuesta v. Insurance Co., 136 Penn. St. 62, 80, this question is discussed at length, and the following rule laid down: “ If the demand is illegal, and the party can save himself and his property in no other way, he may pay under protest, and recover it back; but if other means are open to him by which he may prevent the sale of his property, if a day in court is accorded to him, he must resort to such means. Thus the seizure of a man’s goods under a landlord's warrant for rent that is not due, or for more than is due, would seem to be duress as much as the seizure of property fbr taxes; yet, if the unlawful demand for rent — 471 — be paid under protest, it cannot be recovered back, for the reason above stated, that the tenant can replevy the goods, and try the issue of no rent in arrear before a jury.” In De Graff v. Ramsey Co., 46 Minn. 319, 320, it is laid down as a general rule that— “Where an unfounded or illegal demand is made upon a person, and the law furnishes him adequate protection against it, or gives him an adequate remedy in the premises, if he pay what is demanded, instead of taking the protection the law gives him or the remedy it furnishes, he is. to be deemed to have made the payment voluntarily, and he must abide by it. There is a class of cases where, although there be a legal remedy, his situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable prejudice, — where the circumstances and the necessity to protect himself or his property otherwise than by resort to the legal remedy may operate as a stress or coercion upon him to comply with the illegal demand. In such cases his act will be deemed to have been done under duress, and not of bis free will.” In Parker v. Railway Co., 7 Man. & G. 253, the payment was held to be involuntary because made in order to indnce the company to do that which it was bound to do without such payment, and for the refusal to do which an action on the case would lie. In Harvey v. Bank, 119 Penn. St. 212, it is stated that— “There must be compulsion, actual, present, and potential, in inducing the payment by force of process available for instant seizure of person or property.” In Atwell v. Zeluff, 26 Mich. 118, it was held that a payment made on the demand of an officer under legal process is not voluntary, although made before a levy, “because the party paying has no legal means of preventing the seizure of his property.” Payment, under like circumstances, by a stranger to the tax, has been held to be voluntary, although he has an equal right to assume that the officer will execute the process (Louden v. East Saginaw, 41 Mich. — 472 — 18); and this must he upon the theoiy, not that he has a remedy to prevent the seizure, but in case of seizure an ¿ample remedy- against further proceedings. Babcock v. Township of Beaver Creek, 64 Mich. 601, was brought within 'the rule of the Atwell case, because, under the statute as it then stood, Babcock was liable to pay the tax, and the tax ivas not invalid by reason of its being assessed to Babcock, instead oE in the firm name. The form of the assessment would have been material but for the provision of the statute referred to. City of Detroit v. Martin, 34 Mich. 170, which has been followed in a number of cases, was excepted from the operation of the rule, although the tax was assessed against the property of the party making the payment, because the statute under which the assessment was made was void, and the threatened sale would constitute no cloud upon his title. In Lyon v. Tax Receiver, 52 Mich. 271, a payment made by a stranger to the tax was held to be involuntary; but in that case the collector was in actual possession, and threatened to take away the goods unless payment was made. In the present case the treasurer had, it is true, made a formal levy, and had advertised the property for sale, and in that sense only was he in possession. There had been no attempted or threatened removal of the property. The sale was fixed by the notice, dated February 4, for February 11. The payment was made on the 9th. Plaintiff had then two days in which to bring replevin,— ample time within which to protect itself against an officer acting without color of process. It cannot be said that any immediate or urgent necessity existed for the payment, or that the course taken was necessary to preserve .the property of the plaintiff. Fullam v. Down, 6 Esp. 26, note. Plaintiff had not only an ample remedy against the officer, hut could maintain replevin against the purchaser at such sale, if any should be made. — 473 — The judgment is reversed, and, inasmuch as this determination is conclusive, no new trial will be awarded. Long, Grant, and Hooker, JJ., concurred with McGrath, O. J. Footnotes [1] The assessment was made in 1892, under the tax law of 1891. [1] Canfield was president of the plaintiff corporation.