17 Utah 130 | Utah | 1898
This action was brought by plaintiff and appellant to recover several sums of money stated in 148 different causes of action set forth in the complaint, which sums' were paid the defendant through its treasurer by the plaintiff and his, assignors, upon a void sprinkling tax, assessed and attempted to be collected by the defendant treasurer against each of the assignors. The testimony offered by the plaintiff was undisputed, and tended to show, and the court found, that the payments were made by the plaintiff and his assignors in August, 1893, to H. T. Duke, treasurer of the defendant, upon a sprinkling tax, afterwards declared void by the supreme court. The undisputed evidence shows that the payments of such tax by the plaintiff and his assignors were made under pro
It is claimed by the respondent that the payments of the several taxes were voluntarily made, without any compulsion, and that they cannot be recovered back. It is clear that merely paying a tax under protest does not make the payment voluntary. Something more is required. Under the law as it then stood, the real question in such a case is. whether there was such an immediate necessity for the payment of the tax in controversy as to imply that such payment was made under compulsion. In the case of Preston v. City of Boston, 12 Pick. 14, Chief Justice Shaw lays down the rule as follows: “When, therefore, a party not liable to taxation is called upon peremptorily to pay upon such warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and, by showing that he is not liable, recover the money back as money had- and received.” This, we thi k, is the true rule. Railway Co. v. Commissioners 98 U. S. 541; Erskine v. Van Arsdale, 15 Wall. 75. Judge Cooley lays down the rule that a payment made to relieve the person from arrest or the goods from seizure is a payment on compulsion, and so is the payment made to prevent a seizure when it is threatened. So, with still greater reason is the payment which the officer secures by making sale of goods seized. But it is not necessary for the taxpayer to wait for Ms goods to be sold or even to be seized. If the officer calls upon the person taxed, and demands a sum of money under a warrant directing him to enforce it, the party of whom he demands it may fairly assume that, if he seeks.to act under the warrant at all, he will make it effectual. The demand itself is equivalent to a service of the writ on the person. * * *