107 Ga. 416 | Ga. | 1899
The petition of W. A. and Sallie B. Hoke against the City of Atlanta made, in substance, the following-case : They are the owners of a lot in the city fronting on Butler street. On February 25,1895, a municipal ordinance was-adopted providing for the laying of a pavement of vitrified brick on the portion of that street on which petitioners’ property abuts. This pavement was subsequently laid. Under the provisions of another ordinance adopted September 3, 1895,. the abutting property-owners, including petitioners, were assessed for specified portions of the cost of this paving. These ordinances (for reasons alleged) were void and afforded no lawful basis for collecting from petitioners the amount assessed against them as their proportion of the expenses incurred in making the improvement. On October 30,1895, other owners-of real estate fronting on this portion of Butler street filed an equitable petition, attacking the above-mentioned ordinances, and praying that the city be enjoined from collecting from the plaintiffs therein any assessment on account of such paving. This action, after a decision thereon by the Supreme Court at-the March term, 1896, thereof, finally resulted in the granting-of a permanent injunction as prayed for. While this proceeding was pending, petitioners were notified of the assessment-against them for their alleged proportion of the cost of the paving, and thereupon employed an attorney at law to represent-
The court committed no error in sustaining the defendant’s demurrer. It plainly appears from the allegations of the petition that the payment to the city marshal was, in a legal Sense at least, purely voluntary. That the money was paid under protest, and that this fact was recited in the receipt therefor, does not, in legal contemplation, render the payment involuntary. The plaintiffs had at hand an adequate remedy and one of which they could easily have availed themselves for the purpose of avoiding payment and preventing a seizure and sale of their property. Notwithstanding the assurance given to their attorney at law by the deputy-marshal that all proceedings in connection with this assessment had been stopped, the plaintiffs were themselves subsequently notified by the marshal that the collection of the assessment against them would be enforced by levy unless they made payment within five days. It therefore plainly appears that there was no misplaced confidence on their part, nor any artifice, deception or fraud practiced upon them; but, on the contrary, they acted with full knowledge of, or had ample opportunities for ascertaining, all the facts. Nevertheless, upon coming to Atlanta, the plaintiffs did not even consult their attorney, but assumed, without investigation, that their legal remedies had been exhausted, and accordingly paid the assessment. If they had merely called Upon their counsel, lie would doubtless have promptly informed
The conclusions above announced are amply supported by authority. We extract the following from 18 Am. & Eng. Enc. L. 220: “A voluntary payment of an illegal tax can not be recovered back; and if there is no mode of collecting the tax except by an ordinary prodeeding at law or in equity, a payment will be considered voluntary, though made under protest.” In a note upon the same page we find the following: “An assessment for a municipal improvement, if voluntarily paid, can .not be recovered back, though the payment was made under protest, and the law authorizing the assessment was subsequently adjudged unconstitutional”; citing Peebles v. Pittsburg, 101 Pa. St. 304, 47 Am. Rep. 714; Rogers v. Greenbush, 58 Me. 390, 4 Am. Rep. 292; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Wabaunsee Co. v. Walker, 8 Kan. 431; Bucknell v. Story, 46 Cal. 589, 13 Am. Rep. 220; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323. “If property is assessed for •street improvements to a stranger, and the true owner, with knowledge of the facts, but under a misapprehension of or in ignorance of the law, pays the tax under protest and to prevent '.a threatened sale by the tax-collector, such payment is voluntary and can not be recovered back”; citing Bucknell v. Story, supra.
In Bank v. Americus, 68 Ga. 119, this court held: “To recover taxes paid to a municipal corporation, it must appear that the tax was unauthorized; that the amount was actually received by the corporation; and that it was paid under compulsion to prevent the immediate seizure or sale of plaintiff’s goods, or arrest of his person. Voluntary payment, accompanied by protest, will not suffice.” See opinion of Speer, J., and the authorities therein cited. Among these, we refer especially to 2 Dillon, Mun. Corp. §§940-947, and the case of
It seems, therefore, to be clearly settled that a payment is not made under compulsion or duress, but will be treated as voluntary, unless the party making payment does so to prevent the immediate seizure of his goods or the arrest of his person. It surely requires no argument to show that a threatened levy upon land is neither the one nor the other. Furthermore, the doctrine appears to be that if the law affords to the person from whom the payment is exacted an immediate and adequate remedy to resist payment, he can not be said to have acted under compulsion, if, neglecting to avail himself of such remedy, he elects to make the payment demanded of him.
Judgment affirmed.