Opinion
L.A. No. 1118.
February 12, 1904.
APPEAL from a judgment of the Superior Court of Orange County. J.W. Ballard, Judge.
The facts are stated in the opinion of the court.
McKelvey Bowes, for Appellant.
Victor Montgomery, for Respondent.
The action was brought to recover back taxes paid to the defendant, a tax-collector of Orange County, and ex officio tax-collector of Bolsa Drainage District, under protest. The defendant's demurrer to the complaint was overruled, and thereupon an answer was served and filed. Upon motion by plaintiff certain defenses set up in the answer were stricken out by the court. Thereafter the case was set for trial, and the parties appearing in court, and a jury being waived, the plaintiff was called as a witness, whereupon defendant objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection of the defendant, and thereupon dismissed the action. The appeal is taken from the judgment entered upon the dismissal.
Appellant claims that it was error upon the part of the court to dismiss the action as stated, without a formal motion being made for that purpose, contending that the plaintiff could have met such motion by asking leave to amend its complaint. But the plaintiff was present in court by counsel, and had an opportunity then and there to ask such leave, and failed to do so, simply reserving an exception to the ruling of the court. Besides, no possible benefit could have been derived by the plaintiff if the cause had been left pending in the court after the refusal to hear evidence in the case. It is quite true, as suggested by the appellant, that the objection to the introduction of evidence raised practically the same question which had been decided by the court in overruling the demurrer. Still, the court upon further consideration of the case may have arrived at the conclusion, and probably did, that the complaint was fatally defective, and that the demurrer should have been sustained instead of being overruled. The complaint, however, could not have been amended so as to state a cause of action, for the reason that the notice of protest itself was fatally defective, and that, of course, could not be amended. The plaintiff, therefore, was not prejudiced in not being allowed leave to amend. In the notice of protest attached to and made a part of the complaint, it is stated that the Bolsa Drainage District was not legally formed; that the assessment was not made by duly elected and qualified assessment commissioners; that they did not make any assessment of plaintiff's land and return the same to the board of directors; that no certified assessment-rolls had ever been returned to the tax-collector of any assessment in said district; and that the tax was wholly void and levied contrary to law.
The general rule in reference to the payment of taxes under protest, where not controlled by some statutory provision, is, that in the absence of acts amounting to duress or coercion the payment is deemed to be voluntary, and a mere protest made at the time of such payment does not divest it of its voluntary character. Where there is no legal compulsion, the legal effect of the payment is not impaired by protest. (McMillan v. Richards, 9 Cal. 417; Bucknall v. Story, 46 Cal. 597; Bank of Woodland v. Webber, 52 Cal. 73; Wills v. Austin, 53 Cal. 152; Dean v. Varnum, 80 Cal. 86.) Therefore, according to the statement in the notice of protest, the plaintiff was under no legal compulsion whatever to pay said taxes, and the payment, in law, was made voluntarily upon his part, and he has no right of action to recover the same. The amendment to the Political Code of 1893 (sec. 3819), providing that a payment of taxes under protest shall not be regarded as voluntary, applies to the collection of state and county taxes only. It provides that in case suit be brought for the recovery of taxes so paid, and judgment is recovered, it "shall be entered against such county therefor," and in case such tax or portion thereof may have been paid by the county treasurer into the state treasury it "shall be regarded as an amount due the county from the state, and shall be deducted in the next settlement had by the county with the controller." The Drainage Act of 1897 (Stats. 1897, p. 334), under which this case arose, does not contain any such provision, nor did it adopt the Political Code in reference to the assessment and collection of state and county taxes; and the rule as at common law applies in this case.
70 Am. Dec. 655, and note.
13 Am. Rep. 220.
Judgment affirmed.
Angellotti, J., and Shaw, J., concurred.