Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1880-07-14
III You PAY YoUR MONEY

When You Know the Assessment is Illegal
You Can't Recover.
An opinion was filed by the supreme court
yesterday of Interest to tax payers of ST.
Paul whose property has been, OF Is liable
to be taxed for city improvements. The
case in question grew out of an effort by
Judge William Shane to recover money paid
upon an assessment against his property,
the payment being made with full knowl-
edge that the assessment was illegal and
void. As precaution Judge Shane accom-
panied his payment with a protest. The
court holds that payment SO made can
not be recovered, even though made under
protest, the protest having no qualifying
effect from the fact that there was no duress
or coercion in the matter of the payment.
The following is the opinion of the court
William Shane, appellant, vs. the city of st.
Paul, respondent.
Upon the allegations of the compla int tn
tax Judgment under which plaintiffs land was
sold and the certificate of sale was issued, was
void for want of Jurisdiction, and for matters
appearing upon its face showing its nulllty. be-
sides being founded upon an illegal and void re-
facts appellant had full knowledge when he
paid to the ci ty treasurer for the redemption
of the property from such sale the money
which he now seeks to recover from the re-
spondent on the ground that such payment was
made under protest and was not voluntary.
The only compulsion complained of was the
threated execution on the part of the city to
the holder Of the tax certificate in case no re-
demption was had, within the time fixed by
law, of 4 tax deed to the premises
which would operate as an APP
parent cloud upon the plaintiffs title
by reason of the prima facia character given
to such instruments as evidence of title.
1t is evident from these facts that the pay
ment was made under the influence of no duress
or coercion, actual or threatened, anectlng
either the person or property of the appellant.
Not even any demand for the redemption ap
pears to have been made upon him on the part
of the respondent. He was remaining in the
quiet and ministerial possession of his prop
erty, and there is no pretense that the city
authorities contemplated any interference
Herewith by process otherwise. The exc
cution and delivery of tax deed in accord
ance with the alleged threat could work no dis
turbance of that possession, for being founded
upon alignment void upon its face, its inva-
lidity could always be shown to defeat any
claims that might at any time be asserted
under it. There was therefore no necessity
for plaintiff to make any redemption in order
10 protect his possession Of the property;
neither was he required to do so to avoid any
injurious consequences which might arise by
reason of the apparent cloud which might be
cast upon his title, for upon the facts stated
he had perfect and adequate remedy by
action for the removal of such apparent cloud
whenever created.
The payment therefore, was voluntary one,
unless the protest which accompanied it gave
it different character. This it could not do.
If in fact the party was under no durers, re-
straint or compulsion when he made il, it can
not be said that he acted under the influence
of any coercion in making it because be accom-
panied the act of payment with written or
verbal protest.
A protest is of no avail except in the case of
a payment made under duress or coercion, and
then only as evidence tending to show that
the alleged payment was the result Of the
duress.
Mcmillan VS.. Richards, 9 Cal All. as this
payment in this case, therefore, was purely a
voluntary one, made with full knowledge of all
the facts, this action for its recovery cannot
be sustained.
Burroughs ON tax, 267, 442 Cooley on tax,
sec, and cases cited. Smith vs. Schroeder, 10
MINI. So. Powell vs. County Board of Supts.
st. Oroix County, reported in N. W. Reports,
vol. 1. No. %.
Judgment affirmed. CORNELL, j.