Walker v. City of St. Louis

15 Mo. 563 | Mo. | 1852

Scott, J.,

delivered the opinion of the court.

Although the ground on which this action rests for a support, is, that the defendant has received money to which the plaintiff is equitably entitled, yet, it cannot be denied, that this claim, if it had any foundation in law, is one strictissimi juri. The ground on which the plaintiff seeks to recover the taxes that have been paid, is, that there was a condition precedent, the performance of which was necessary to have enabled the defendant to demand the money, which, it is alleged, she has unjustly exacted from him. It is not pretended that the defendant has acted in bad faith, or that she has wantonly exacted money from the citizens, to which she had no color of right. She did that which was supposed to be a substantial performance of the condition which -gave authority to assess and collect the taxes, the repayment of which is sought by this action. The plaintiff was a resident of the city, and, as this suit shows, owned a large portion of the property, which has been enhanced in value by the imposition of the taxes of which he now complains. A knowledge of the ordinances, passed in order to fulfill the condition precedent, on the performance of which a right to demand the taxes accrued, may be imputed to the plaintiff. Yet, with this knowledge, he makes no objection, pays the taxes, sees them applied to improvement and the enhancement of the value of the property on which they were levied, and years afterwards, for the first time, is the complaint of extortion made. Whether the condition was substantially complied with or not, is a question about which different opinions maybe honestly entertained. But it is supposed, that the judgment of this court, in the case of Allen vs. The City of St. Louis, settles the question, that the condition precedent was not complied with. But does not that case also show, that if the plaintiff was unwilling to pay the taxes, he was under obligation to do so. He might have been relieved against the pretended exactions of the collector, if he saw proper. But he acquiesced; he paid his taxes, saw them applied to the improvement of that very property upon which they' had been levied, and now, most unaccountably, would have them refunded to him. The main case relied on by the plaintiff, is that of the Boston and Sandwich Glass Co. vs. The City of Boston, 4 Met. 181. The principle of that case is, as stated: “that the warrant is in the nature of an execution, running against the property and person of the party, upon which he has no day in court, no opportunity to plead and offer proof and have a judicial decision of the question of his liability.” Now, the case o ’Allen vs. The City oí St. Louis, on which the plaintiff relied, to sustai' his right of recovery, shows, that he was not in the catagory of the M ssaohusetts tax-payers. He could have been protected from the opere.o of the collector’s warrant, had he seen proper to take the.necessary steps for that purpose. Such being the case, the payments made to the city collector must be regarded as voluntary, and not made under such circumstances of duress as will authorize the party paying the tax to recover it.

There is another aspect in which this case may be presented, which shows, that the assumption of the plaintiff, that the taxes were extorted by duress, cannot be sustained. In the case of The City against Allen, the amount of the taxes, which might have been lawfully assessed, were tendered before any proceedings were had to restrain the collector. The city had a right to lay some portion of the tax which is now sought to be recovered, one-sixteenth of one per cent. The plaintiff’s declaration concedes this. There were taxes, then, due the city by him. The collector could execute his warrant for them. They were not paid nor offered to be paid. The warrant, then, was not void. Now the only mode in which the plaintiff could place the city in the attitude of a wrong doer, in executing the distress warrant, was, to tender the sum really due, and then to have resisted the payment of the excess above the legal rate of assessment. As he did not do this, he cannot now complain, that the warrant was void for want of authority. The only ground on which this action can be supported is, the total illegality of the warrant of distress. The principle, that an abuse of an authority in law or excess of it, will make the party a trespasser ab initio, is not applicable here. The city had an unquestionable right to levy a portion of tax. She had done that which, she was advised justified her in assessing the whole amount, and because she, in consequence of this error, assessed a greater tax than she should have done, her act should be sustained to the extent of her authority. The collector, then, would not have been a trespasser or wrong doer in levying this warrant; and if not, the whole foundation of the plaintiff’s action, that the payment made by him was compulsory, in consequence of the illegality of the warrant, is swept from under him.

The other judges concurring, the judgment will be affirmed.