City of Chicago v. Northwestern Mutual Life Insurance
75 N.E. 803
Ill.
1905
Check Treatment
Mr. Justice Wilkin

delivered the opinion of the court:

The sole question is as to the right of appellee to recover the sum thus paid under protest. It is not claimed that the city had any lien on the lots for the back taxes or that appellee was under any obligation to pay the same, but it is claimed by appellant that the city had a right to say that it would not furnish a future supply of water unless its old bills were paid, and that the payments were made by appellee with full knowledge of all the facts, and were therefore voluntary and not under protest, and cannot be recovered.

Appellant is a municipal corporation. Its corporate powers do not require it to furnish water to its inhabitants, but it has the right so to do when it sees fit. But when it does thus furnish its inhabitants with water, it is not by virtue of the exercise of the power of sovereignty, but it is a business which is public in its nature, and belongs to that class of occupations or enterprises upon which public interest is impressed. The water rates are imposed and collected, not as a tax, but as a compensation to be paid by those who choose to receive and use the water. The city cannot arbitrarily establish its rates, but they must be, to a certain extent, uniform, reasonable and just. Neither can the city arbitrarily select its patrons, but it must serve all who may apply on equal terms. (Wagner v. City of Rock Island, 146 Ill. 139.) Appellee became the owner of the pieces of property at various times, covering a period of several years. Under the law it had a right to be treated the same as other residents of the city. When payment was demanded for back taxes, it offered to pay what other inhabitants of the city paid for like services but refused to pay the rate in arrears.- Demand was made for the whole amount and a part payment would not be accepted. Appellant and appellee did not stand upon the same footing, as appellant had the power and means to deprive appellee of its water supply, and had threatened to exercise this power, and had in some instances actually shut off the water. The various pieces of property were occupied as residences and stores, which required water, and to shut-the water off from them would entail great damage to appellee, as it had no other means of supplying them. The bills were not contracted by appellee, and it was under no more obligation to pay them than it was to pay any other bills of any other person. The back tax was not a lien upon the premises, and appellee had in no way, as required by law, promised to pay the same. It is the well settled rule of this State that where one is compelled to make payment of money which the party demanding has no legal right to receive, in order to prevent injury to his person, business or property, such payment is, in law, made under duress and may be recovered from the party receiving it; and it makes no difference that the payment was made with full knowledge di all the facts, provided it was made under duress. Appellee, at the time of payment, expressly stated that it was made under protest and to avoid trouble and damage to its property. The payment was illegally exacted and appellee had a right to recover in an action of assumpsit. Westlake v. City of St. Louis, 71 Mo. 47; St. Louis Brewing Co. v. City of St. Louis, 140 id. 417.

Complaint is made that the court allowed interest on the various amounts from the date of payment by appellee to the date judgment was rendered. We do not think there was any error, for the reason that appellant wrongfully took from appellee the sum of $1564.94 and had it in its possession from that time until the present. As a general rule, a municipal corporation is not liable for interest unless so required by special contract or by statute, but in case where a municipal- corporation wrongfully exacts money and holds that money without just right or claim, it is liable for interest on the same. Vider v. City of Chicago, 164 Ill. 354; City of Danville v. Danville Water Co. 180 id. 235.

We find no reversible error, and the judgment will be affirmed.

Judgment affirmed.