Bank of Santa Rosa v. Chalfant

52 Cal. 170

Opinion

If coercion existed and was exercised by the Tax Collector, the complaint should have shown it. Force or coercion is a necessary precedent to a protest. (Brummagim v. Tillinghast, 18 Cal. 271; Buchnall v. Story, 46 Cal. 598, 599; Forbes v. Appleton, 5 Cush. 117; Mays v. Cincinnati, 1 Ohio, 268; Union Bank v. New York, 51 Barb. 159; McMillan v. Richards, 9 Cal. 417.)

Lamar & Johnson, for the Despondent.

There was no legal process by which plaintiff could have prevented the defendant from executing his threat.

“ An injunction will not lie to restrain the collection of taxes by sale of property of the tax-payer.” (Houghton v. Austin, 47 Cal. 646; C. P. R. R. v. Corcoran, 48 Cal. 65.)

By the Court :

The only averments of the complaint tending to show compulsion or coercion were, that the defendant demanded payment of the alleged illegal tax, and threatened to sell the property of plaintiff in ease of non-payment. But it does not appear that the tax was then delinquent, or that the defendant was, at that time, armed with any authority, real or apparent, to carry out his threat. As there was no legal duress of person or property, the payment must be considered as voluntary, and, upon well settled principles, cannot be recovered. (Panic of Woodland v. Webber, 52 Cal. 78; Bucknal v. Story, 46 Cal. 598.) The demurrer to the complaint should have been sustained.

Judgment reversed and case remanded.