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Payment Under Protest

paid, voluntary, money, ed, ct, sup, tax, recovered, co and duress

PROTEST, PAYMENT UNDER. Internal revenue taxes paid voluntarily cannot be re covered back, and payments, with knowledge and without compulsion, are voluntary ; Chesebrough v. U. S., 192 U. S. 253, 24 SuP. Ct. 262, 48 L. Ed. 432. A person who without the compulsion of legal process, or duress of goods or of the person, yields to the asser tion of an invalid or unjust claim by paying it, cannot by mere protest, either In writing or oral, change its character from a volunta ry to an involuntary payment. The payment overcomes and nullifies the protest ; 4 Wait. Act. & Def. 493. Where an illegal tax is paid under protest to one having authority to enforce its collection, it is an involuntary payment and may be recovered back ; Lau man v. Des Moines, 29 Ia. 310; First Nat. Bk. of Sturgis v. Watkins, 21 Mich. 483 ; but see Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512.

A mere apprehension of legal proceedings to collect a tax is not sufficient to make the payment compulsory ; there must be an im mediate power or authority to institute them ; In re Stratton's Estate, 46 Md. 552.

An action will not lie to recover money voluntarily paid to redeem land sold upon a void tax judgment when the party mak ing the payment has at the time full knowl edge of the character of the sale and all the facts affecting its validity ; Shane v. St. Paul, 26 Minn. 543, 6 N. W. 349.

The payment of illegal fees cannot gener ally be considered as voluntary, so as to preclude the plaintiff from recovering them back ; 2 B. & C. 729; 2 B. & A. 562. Where money is paid under an illegal demand, colore officii, the payment can never be vol untary; 8 Exch. 625.

Where a railway company exacted from a carrier more than they charged to other carriers in breach of the acts of parliament, it was held that sums thus exacted could be recovered back ; 7 M. & G. 253. Where a man pays more than he is bound to do by law for the performance of a duty which the law says is owed to him for nothing, or for less than he has paid, he is entitled to recov er back the excess ; L. R. 4 H. L. C. 249.

The object of the protest is to take from the payment its voluntary character ; it serves as evidence that the payment was not voluntary, and in order to be efficacious there must be actual coercion, duress, or fraud, presently existing, or the payment will be voluntary in spite of the protest; Flower v. Lance, 59 N. Y. 603; Emmons v. Scudder, 115 Mass. 367. Whether actual pro test, in case of the payment of money ille gally demanded by a public officer is a condi tion precedent to a recovery by the party paying the money is not clearly settled ; 4 Wait, Act. & Def. 495. Where the person demanding the money has notice of the ille gality of the demand, a protest is not neces sary, but otherwise it is necessary ; Meek v. McClure, 49 Cal. 624.

When duties are paid in order to get possession of the goods, a protest made with in ten days after the ascertainment and liqui dation of the duties is sufficient ; Saltonstall v. Birtwell, 164 U. S. 54, 17 Sup. Ct. 19, 41 L. Ed. 348, where the statutes on the sub ject are examined.

The rule that money paid on account of an unlawful demand, voluntarily and with knowledge of all the facts, cannot be re covered back unless paid, under protest or to emancipate the property from an actual and existing duress, does not prevent the recovery of money paid on an illegal demand reluctantly by one without ability to regain possession of his property except by making such payment ; The John Francis, 184 Fed.

7443.

Neither a statute imposing a tax, nor exe cution thereunder, nor a mere demand for payment is treated as duress. It does not necessarily follow that there will be a levy on goods; or if there is a levy, the citizen, to avoid the consequences may pay the mon ey, regain his property, and maintain a suit for the recovery pf what has been exacted from him. The legal remedy redresses the wrong. But he has the same right to sue if he pays under compulsion of a statute whose self-executing provisions amount to duress. An act which declares that, where the fran chise tax is not paid by a given date, a pen alty of twenty-five per cent. shall be incur red, the license of the company cancelled, and the right to sue be lost, operates much more as duress than a levy on a limited amount of property. Payment to avoid such consequences is not voluntary, but compul sory, and may be recovered back ; Oceanic Steam Nay. Co. v. Stranahan, 214 U. S. 320, 29 Sup. Ct. 671, 53 L. Ed. 1013; Atchison, T. & S. F. R. Co. v. O'Connor 223 U. S. 280, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050; Gaar, Scott Co. v. Shannon, 223 U. S. 468, 32 Sup. Ct. 236, 56 L. Ed. 510.

Where excessive customs duties are paid under a mistake of law and without protest the payment is voluntary and there can be no recovery ; Gulbenkian v. U. S., 186 Fed. 133, 108 C. C. A. 245.

After dispute, plaintiff paid tolls to a navi gation company whose charter only author ized the collection of reasonable tolls; held that, although the tolls were unreasonable, the excess cannot be recovered back, since no formal protest was made; Monongahela Nay. Co. v. Wood, 194 Pa. 47, 45 Atl. 73. "A party cannot avoid the legal consequences of his acts by protesting, at the time he does them, that he does not intend to subject him self to such consequences ;" U. S. v. Lamont, 155 U. S. 310, 15 Sup. Ct. 97, 36 L. Ed. 160, per White, J. Where a life insurance com pany reduced the amount payable to its mem bers and a member paid assessments at the reduced rate for more than two years under protest, it was held they were voluntary and could not be recovered back ; Lippincott v. Supreme Council A. L. H., 130 Fed. 483.

Money paid to a collector under protest, to enable a vessel to clear on the schedule, is paid involuntarily, and, if illegally paid. can be recovered; Oceanic Steam Nay. Co. v. Stranahan, 214 U. S. 320, 29 Sup. Ct. 671, 53 L. Ed. 1013; where an inheritance tax was paid under protest that it was illegal and with notice that suit will be brought to recover, it is a sufficient foundation for such suit ; Heiold v. Kahn, 159 Fed. 608, 86 C. C. A. 598.

The owner of a cargo of sugar brought from the Philippine Islands, who voluntarily paid the duty assessed thereon as imported merchandise, without objection or protest, cannot maintain an action to recover the same on the ground that the sugar was not imported and the duty was therefore unlaw fully exacted ; Flint, Eddy & American Trad ing Co. v. Bidwell, 123 Fed. 200.

See note in 36 L. R. A. (N. S.) 476, on re covery back of taxes, etc.; TAX.