First National Bank of Americus v. Mayor, etc.

The question in this record, submitted for our consideration is, whether plaintiff has set forth a good and legal cause of action in his writ, and was there error in dismissing the same on demurrer.

To determine this question properly, it will be necessary to inquire under what allegations and proofs can a complaining party recover of the authorities an illegal tax that has been levied and collected of the party complaining- that is, what must be alleged in the writ and what must be proved on trial, for it is well established as a rule of pleading that every thing must be alleged and proved that is essential to a recovery under the rules of law applicable to the cause on trial.

1. It is a well recognized rule, that a tax, voluntarily paid, even though illegally assessed by the taxing power, where there is no misplaced confidence, and no artifice, or deception, or fraudulent practice by the other party, cannot be recovered back. 50 Ga. 304.

2. So, where there is no ignorance, or mistake of facts, if money is paid to a corporation levying under a claim of right, under an ignorance or mistake of law, the same is not recoverable.

Under none of these grounds does the plaintiff here seek to recover. There is no charge of ignorance of fact, or of misplaced confidence, artifice, or deception, or fraudulent practice alleged against the defendants in levying and collecting this tax, and by reason of which it was paid by the plaintiff. There is only one ground alleged, or set forth, in plaintiff's writ, and this is made to apply to all of the taxes alleged to be illegally paid, and which are sought to be recovered. The petitioner alleges that "it protested against the payment of said sums, but to avoid the sale and seizure of its property by said mayor and council, did pay the said sums," etc.

Duress or coercion is here shadowed forth as the impelling or moving power of this payment now sought to be recovered. But do the facts or causes alleged constitute either coercion or duress ? It is well settled that money paid under protest merely does not make the payment a compulsory one. 13 Gray, 476.

Mr. Dillon, in his work on Corporations, lays down clearly and intelligently the rule. He says: "The coercion or duress which will render a payment involuntary, must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other

First National Bank of Americus v. Mayor, etc.

means of immediate relief than by making payment." 2 Dill. Mun. Corp., § 943 (3d ed.); Radich v. Hutchins, 95 U. S. 210; 4 Gill, 425; 18 Cal. 256; 1 Ohio St. 268.

Tested by this rule, are there any allegations of facts in this writ that show "there was some actual or threatened exercise of power, by the party exacting or receiving the payment, over the person or property of plaintiff, from which he had no other immediate means of relief ?" We see none. The writ must be construed most strongly against the pleader. The presumption is, he put his cause on record as favorably to himself as the truth of the case would warrant, and all he sets up by way of compulsion to justify or excuse the payment was, he did so "under protest, and to avoid a sale and seizure of his property."

Three elements are essential, and must concur, to sustain an action to recover back money on the ground of the illegality of the tax :

First. The authority to levy the tax must be wholly wanting.

Second. The money sued for must have been actually received by the defendant corporation.

Third. The payment of the plaintiff must have been made upon compulsion, to prevent the immediate seizure of his goods or the arrest of his person, and not voluntarily made.

Unless these conditions concur, paying under protest will not give a right to recovery. Dill. Mun. Corp., § 940.

There being no statutory right regulating this action in our State, we are remitted to the common-law rule of force, and this is well and succinctly stated by the Supreme Court of the United States in two recent cases where actions were brought to recover back illegal taxes. Lamborn v. Dickinson, 97 U. S. 181 (1877); Union Pacific R. v. Dodge County, 98 id. 541 (1878). In these recent cases that court lays down the following rule:

"Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary." 2 Dill. Mun. Corp. 947.

Western Union Telegraph Company v. Blanchard.

This rule was also fully recognized in a decision of this court in a recent case, at September term, 1880, not yet published of the Mayor of Savannah v. Feeley, which was a much stronger case than the one at bar.

Tested by this rule of liability and we think it the correct one, the case, as set forth in plaintiff's declaration, falls far short of its requirements. But it is insisted that a more liberal ruling by this court, in favor of a recovery in such a case, was made in 48 Ga. 309. In that case the court laid down the rule, generally, that a tax levied without authority of law may be recovered, but the case did not decide that a voluntary payment could be recovered under such circumstances, nor that a recovery could be had unless the payment was compulsory.

Public policy does not favor the institution of such suits. The complainant had his legal right to resist illegal taxes when levied, and when he acquiesces and knowingly pays an illegal assessment, and the sums raised are disbursed for the public good, of which he is one of the recipients, courts will not regard with favor a complaint that might have been prevented by the exercise of that diligence that the law favors. He must bring himself within the strict rule the law has fixed, that entitles him to recover; otherwise he must abide the consequences of his own default and negligence. Let the judgment of the court below be affirmed.

Judgment affirmed.

WESTERN UNION TELEGRAPH COMPANY V. BLANCHARD.

(68 Ga. 299.)

Telegraph — negligence — repeating — regulation of exemption.

"

A telegraph company received the following message for transmission; "Cover two hundred September and one hundred August," and transmitted it "Cover two hundred September and two hundred August. The expressions were common and well understood in the cotton trade. Held that the company was liable for the full amount of damag› suffered, although the message was not repeated according to its regulation, and although in such cases its regulation undertook to limit its liability. (See note, p. 486.)

CTION of negligence. The head-note and opinion state the case. The plaintiff had judgment below.

Western Union Telegraph Company v. Blanchard.

John S. Bigby, for plaintiff in error.

Peabody and Brannon, for defendants.

SPEER, J. Blanchard, Williams & Co. sued the Western Union Telegraph Company in an action of assumpsit for the sum of $189.71 as damages claimed to have been sustained in consequence of an error in the transmission of a day message from the city of Columbus to the city of New York.

The declaration alleges that on the 19th day of May, 1879, the plaintiff below caused to be delivered to the defendant a message in writing as follows:

“WALDRON & TAINTER, New York.

Cover two hundred September, one hundred August.

(Signed)

BLANCHARD, WILLIAMS & Co."

To be sent and delivered to Waldron & Tainter, New York, and the defendant for a certain consideration agreed to do it. That the company did not transmit the message as received, but changed it so that when delivered to Waldron & Tainter, in New York, it read as follows:

"TO WALDRON & TAINTER, New York.

Cover two hundred September, two hundred August.

(Signed)

BLANCHARD, WILLIAMS & Co."

The declaration alleged that Waldron & Tainter were at that time factors and commission merchants in New York, engaged in buying and selling cotton, and then held for plaintiff 100 bales of cotton, to be delivered to their order in August, 1879, in New York, and that plaintiffs, desiring to sell said 100 bales, delivered said message to defendant, to be carried to New York to be delivered to said Waldron & Tainter. Plaintiffs aver that the message was an order from them to Waldron & Tainter to sell said 100 bales of cotton on their account, to be delivered in New York in August, 1879, and would have been so understood if it had been delivered to them as written and delivered to the telegraph company.

That the message, as sent by defendant, was an order to sell 200 VOL. XLV -61

Western Union Telegraph Company v. Blanchard.

bales, to be delivered in New York in the month of August, and was so understood by Waldron & Tainter; and in consequence of the change of the message they sold 200 bales of cotton on account of plaintiff, to be delivered in New York in the month of August, instead of 100 bales as directed by the message delivered by plaintiffs. By reason of this change Blanchard, Williams & Co. were compelled to buy 100 bales to comply with the sale made by Waldron & Tainter.

That on the 20th of May, 1879, they advised Waldron & Tainter of the change in the message, and they on the 21st of May bought 100 bales of cotton to comply with said sale made; but in consequence of the fact that cotton had advanced, a loss was incurred by plaintiffs of $159.67, and they were also put to the expense of $25 in selling and buying said 100 bales, and $5, in se nding message by telegraph to New York in connection therewith.

To this suit defendants filed the pleas,

(1.) Of the general issue.

(2.) That the plaintiffs at the time of sending said message made no request to have said message repeated, did not offer or pay to have said message repeated, but paid for it as a single message under the rules and regulations of the company, which were known to plaintiffs and assented to by them.

(3.) That the message of plaintiffs was an obscure or cipher message, and plaintiffs did not at the time of its transmission inform the defendant of the value or importance of the message. That the plaintiffs well knew of the rules and regulations of the company as to sending obscure or cipher messages, and the same was sent under said rules, etc., and defendant, under said rules, was not liable, and they were sent at risk of plaintiffs.

(4.) That plaintiffs did not communicate to defendants at the time of the transmission of said message, the special circumstances under which it was sent, nor were they known to defendant- that the message was of any value or importance.

(5.) That the contract in respect to which said message was sent was an illegal contract under the law, being a contract touching the sale of cotton futures.

Under the evidence and charge of the court the jury returned a verdict for the plaintiffs, whereupon the defendants made a motion for a new trial on various grounds as set forth in the record, which was overruled by the court and defendant excepted.