Majority
p. 379[No. 5546.] J. C. MERRILL, LESLIE C. HANKS, and CHAS. R. MERRILL v. ALEX. AUSTIN, Tax Collector of the City and County of San Francisco.
Headnote
Yoluktaby Payment ob Tax.—The payment to a Tax Collector of the amount of a tax, made before the tax was returned delinquent, was voluntary, although accompanied by a protest in form, and the amount so paid cannot be recovered back.Appeal from the District Court of the Fifteenth Judicial District, City and County of San Francisco.
Action to recover back a tax on personal property, levied for the fiscal year 1872-3. The payment was made January 2nd, 1873, and before the tax was returned as delinquent. The plaintiffs had judgment, and the defendant appealed. (See Wills v. Austin, ante, p. 152.)
W. C. Burnett, City and County Attorney, for Appellant.
Geo. B. Merrill, for Respondents.
p. 380
By the Court :
The payment under protest was -made on the 2nd day of January, 1873, and before the tax (which was on personal property alone) was returned delinquent. Until the tax became delinquent, the plaintiff was not under such legal coercion as compelled the payment in order to save the collection of the amount by sale of his real property or otherwise. The payment was a voluntary payment, because the defendant was not then in a position to enforce the collection by a sale of plaintiff’s property. (Williams v. Corcoran, 46 Cal. 556 ; Bank of Woodland v. Webber, 52 Cal. 73 , and other cases.)
Judgment and order reversed, as of the day of the submission of the cause. Kemittitur forthwith.
Cases cited
- Bank of Woodland v. Webber 52 Cal. 73 p. 380