#### Neumann, Respondent, vs. City of La Crosse, Appellant.

*September 22*

*October 13, 1896.*

*Municipal corporations: Recovery of license fees illegally exacted: Payment under duress: Instructions to jury.*

1. Payment of a license fee exacted by a city under a void ordinance, made to avoid a threatened arrest and without conceding any liability therefor, is a payment under such duress that the amount may be recovered, where the city charter authorized the arrest, upon warrant, of persons violating its ordinances, and the plaintiff did not know but that the officer threatening the arrest had such a warrant at the time.

2. A charge, in such case, to the effect that plaintiff could recover if he made the payment *under protest or*under compulsion, is *held*not erroneous, since, in the light of the facts and circumstances of the case, theretofore referred to in the charge, the words “under protest *”*must have been understood to mean under protest when threatened with arrest.

Appeal from a judgment of the circuit court for La Crosse county: O. E. *Wyman,*Circuit Judge.

*Affirmed.*

Eor the appellant there was a brief by *Martin Bergh,*city attorney, and oral argument by *Mr. Bergh*and *Mr. F. II. Bloomingdale.*

To the point that the license money in question was not paid under such compulsion as to entitle the plaintiff to recover it back from the city, they cited *Oshkosh v. Schwartz,*55 Wis. 483; *Oook v.*Boston, 9 Allen, 393; *Ous-tm v. Viroqua,*67 Wis. 317; 18 Am. & Eng. Ency. of Law, 214, and note; Tiedeman, Nun. Corp. § 326a; Beach, Pub. Corp. § 234 *ei seq.; Taylor v. Boa/rd of Health,*31 Pa. St. 73; *Union Ins. Oo. v. Allegheny,*101 id. 250, 256; Dillon, Mun. Corp. § 751; *De La Guesta v. Ins. Oo. of FT. A.*9 L. B. A. *631; Weber <o. Kirkendall,*44 Neb. 766; *Oahaba v. Burnett,*34 Ala. 400; *Ligonier v. Ackerman,*46 Ind. 552, 562; Cooley, Taxation, 567; *Phelps v. Hew York,*112 N. Y. 216, 222; *H. W. Union Packet Oo. v. Muscatine,*45 Iowa, 185; *Bu/nker v. Steward,*2 New Eng. Bep. 424; *Brazil v.*
      *104
      *Kress,*55 Ind. 14; *Edvriburg v. Hacltney,*54 id. 83; *Railroad Go. v. GommJrs,*98 U. S. 541, 543; *Wabaunsee Go. v. Walker,*8 Kan. 431; *Mays v. Cincinnati,*1 Obio St. 269.

For the respondent there was a brief by *Winter, Esch & Winter,*and oral argument by *Frank Winter.*

They cited Cooley, Taxation (1st ed.), 568, 569, and cases cited; *Harvey v. Obney,*42 Ill. 336, 338, 339; *HecJcman v. Swartz,*50 Wis. 267; *Parcher v. Marathon Go.*52 id. 388, 390, 391; 2 Dillon, Mun. Oorp. §§ 942, 943, and cases cited; 2 Desty, Taxation, 797; *Joyner v. School Hist.*3 Cush. 567, 572; *Boston de S. Glass Go. v. Boston,*4 Met. 181, 188; *Atwell v. Zeluff,*26 Mich. 118; *Preston v. Boston,*12 Pick. 7, 13; *JenJcs v. Lima,*17 Ind. 326; *Lima v. JenJcs,*20 id. 301; *Smith v. Readfield,*27 Me. 145,147; *Allen v. Bxvrlington,*45 Yt. 202, 214; *Moore v. St. Paul,*61 Minn. 427; *Landa v. Obert,*78 Tex. 33; *Powell v. St. Croix Go.*46 Wis. 210; *Buggies v. Eon'ddu Lac,*53 id. 436, 442; *Biss v. Hew Haven,*42 id. 605; *Matheson v. Mazomanie,*20 id. 191; *De Fremery v. Austin,*53 Cal. 380; *Judd v. Fox Lake,*28 Wis. 583, 587.

Cassoday, C. J.

It appears from the record that for six consecutive years immediately prior to the commencement of this action the plaintiff was engaged in the business of selling fresh meats in the city; that in each of those years the defendant, by its police officers, exacted of the plaintiff a license fee of $12, under an ordinance of the city which, on the trial, was conceded to be entirely void and of no effect. The plaintiff paid each of such exactions, and now brings this suit to recover back the amount so paid, with interest, on the ground, as alleged, that he paid the same under duress. The defendant denied liability, and succeeded in the justice’s court, but on the appeal and retrial in the circuit court the plaintiff recovered'a verdict of $86.36, and from the judgment entered thereon the defendant appealed to this court, prior to the enactment of ch. 215, Laws of 1895.

*105We are constrained to hold that there is evidence sufficient to sustain the verdict, to the effect that each of the-several payments were made to avoid threatened arrest by the defendant’s policemen, and hence made under duress. The city charter authorized the arrest of persons for violating its ordinances, on warrant duly issued. Laws of 1887, ch. 162, subch. 14, sec. 1. There is evidence tending to prove that the plaintiff did not know but that each such police officer had such warrant at the time of making such threat, and that the plaintiff at no time conceded his liability to pay such exaction, but at all times denied the same. These views are supported by repeated rulings of this court. *Judd v. Fox*Lake, 28 Wis. 583; *Parcher v. Marathon*Co. 52 Wis. 388; *Ruggles v. Fond du Lac,*53 Wis. 436. It requires no authorities to show that a threatened arrest is. far more persuasive than -a threatened levy. The verdict is conclusive that the jury believed the evidence on the part, of the plaintiff, and, if that is true, then the payment was not voluntary; and hence the case is distinguished from* those cited by counsel for the defendant.

Exception is taken because the court charged the jury to-the effect that if they found from the evidence that these payments were not voluntarily made, but were made under protest *or*under compulsion, then the plaintiff was entitled to recover them back in case the city had received the money; and, again, that, if they believed from the evidence that the plaintiff had paid them under protest *or*under compulsion, then he was entitled to recover them back in case the money was paid into the city treasury and the city had the benefit of it. The objection to these portions of the charge is to the use of the disjunctive “or,” and hence it is claimed that the charge allowed a recovery even if the jury believed that the payment was made under a mere-protest. The case was tried on both sides*on the theory that the ordinance was void, and that the defendant had no-*106right to the money. The court had already charged the jury to the effect that, although the city had no right *to*the money, yet that, if the plaintiff voluntarily paid it, then he could not recover it back; and that if, under all the facts and circumstances in the case, they believed the payments were made voluntarily and without any compulsion and without any protest, then the plaintiff could not recover. The word “ protest ” must have been understood in the light of the facts and circumstances thus referred to; that is to say, he so paid under protest when so threatened with arrest.

Under the decisions cited, we must hold that there' is no material error in the record.

*By the*Court.— The judgment of the circuit court is affirmed.