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Dance, and destroyed, also, all right to collect any tax thereunder. Napa State Hospital v. Flaherty, 134 Cal. 315, 66 Pac. 322; City of Sonora v. Curtin, supra; Town of Santa Monica v. Guidinger, supra. And that this was the effect of such repeal of the power upon the right to collect was also declared in the Flanigan and the Wheeler & Ridenour Cases in the United States Supreme Court, above referred to. See, also, on both the above points, the case of Sierra Co. v. Flanigan (Sac. No. 1,219, decided by this court and above referred to) 87 Pac. 801.

In passing from this branch of the case it is well to say that the ordinances embraced In the above cases, passed upon by the Supreme Court of the United States, are entirely different in their terms from the ordinance under consideration in the case of County of Plumas v. Wheeler et al. (No. 1,361) 87 Pac. 909, and County of Sierra v. Flanigan (No. 1,305) 87 Pac. 913, pending in this court, and the decisions in which cases were filed yesterday-October 1, 1906. These latter ordinances were passed subsequent to March 23, 1901, and purported, by their title, and from their provisions, to be for the purpose solely of regulating the business of raising, grazing, herding, and pasturing sheep or lambs in the respective counties where they were enacted. We have, however, nothing to do with those cases in the consideration of this appeal, and simply refer to them as involving ordinances passed at a different time and containing different provisions.

Recurring now to the matter under consideration: As the ordinance here in question was a revenue measure, and it, together with any right to collect a license under it, became inoperative upon the passage of the act of March 23, 1901, it necessarily follows that the claim made by the respondent, and sought to be enforced by the criminal prosecution taken against said Ridenour, was unauthorized and invalid, and, if payment of such illegal demand was compelled by duress, and paid under protest, the plaintiffs have a right to recover it back.

This brings us to the last point made on the appeal-an inquiry as to whether the payment made was a payment under duress, or, as contended by respondent, a voluntary payment. Under the facts alleged in the complaint, the payment was unquestionably compulsory and involuntary, and we cannot perceive the slightest basis for the contention that it was otherwise. Laying down the general rule as to what constitutes an involuntary payment, it is said: "The authorities are unanimous to the effect that where one is compelled by duress of his person to pay an unjust or illegal demand, and he makes the payment under protest, such payment is compulsory and can be recovered back." 22 Am. & Eng. Enc. of Law, 613. "In the absence of specific statutory provision the general doctrines as to the recovery of payments apply to the payment of taxes. Hence,

taxes voluntarily paid, without legal duress or coercion, cannot be recovered back, but, when a person is called upon peremptorily to pay a tax to which he is not liable, and he can save himself or his property in no other way than by paying the illegal demand, he may recover the money so paid as money had and received." 27 Am. & Eng. Ency. of Law, 757, 758. In Osborn v. Robbins, 36 N. Y. 371, the Court of Appeals says: "When a party is arrested without just cause, and from motives which the law does not sanction, any contract into which he may enter with the authors of the wrong, to procure his liberation from restraint, is imputed to illegal duress. It is corrupt in its origin, and the wrongdoer can take no benefit from its execution. In such a case, the element of voluntary assent is wanting. The parties do not meet on equal terms. The authority of the courts is perverted to unworthy uses. The instrumentalities employed to produce a consenting will are force and fraud, agencies which the law abhors. The prisoner is at the mercy of the accuser, and he submits to extortion, as the means of deliverance from oppression under the forms of law." And in this state in Brumagin v. Tillinghast, 18 Cal. 272, 79 Am. Dec. 176, involuntary payment is thus defined: "It may be said in general that there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the payment, over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by advancing the money."

Now, from the facts alleged in the complaint, it appears that the respondent, the county of Plumas, was asserting against these plaintiffs an illegal and unjust claim for conducting a lawful business. In the enforcement of that claim the agents of the county caused the arrest of one of these plaintiffs, against whom this claim was made, charged him with a criminal offense with a view of enforcing its demand, took him into actual custody, and, as a condition precedent to his obtaining release from the custody of the sheriff under such criminal proceedings, and to avoid imprisonment, compelled him to pay the amount of the license tax which it unjustly asserted was due. The obvious purpose of the criminal prosecution was to attain this end. The process of the criminal court of the county was invoked to accomplish it; the plaintiff Ridenour was, under its process, in duress of imprisonment, and, to procure his liberation from such imprisonment-from a danger urgent and immediate-paid under protest the license tax illegally demanded of him. That the payment by the appellant Ridenour of the amount demanded by respondent under this ordinance was unlawfully exacted has been heretofore determined, and that the payment itself was compulsory and involuntary, the

recital of the above facts from the complaint, and the application to them of the rules of law above cited, makes it so apparent that further discussion of the proposition would be useless.

It is insisted, however, that, if Ridenour was arrested and charged with a misdemeanor in conducting a business for which he had not paid a license, he would have been entitled to acquittal on a trial, upon the ground that the ordinance involved in the criminal prosecution was void, and that the proper place to have made that defense was

We think not. The payment to Clough was, as we have seen, made under duress and to effect Ridenour's release from custody, and was made under protest. The final payment to the county was made on demand of the respondent doubtless so as to have the money claimed to be due for the license actually paid into the county treasury. It was paid by Clough upon its demand and under protest, and so paid for the purpose of preventing Ridenour from being again taken into custody under the warrant of arrest issued in the criminal proceeding, and to be relieved

in the criminal case; that, if the ordinance from which the original payment had been

was invalid, that finding would have been sufficient to secure his release, and, if he saw fit to pay the license, rather than make a defense against the criminal charge, his act was the result of a choice between a trial of the criminal case and the payment of the money to avoid it, and hence, was voluutary. We are not able to grasp the force of this reasoning as applied to the case at bar. It might have more merit if there was not present here the fact that Ridenour was in duress, and could only obtain his release upon payment of the illegal charge. He was not required to pay a fine under the criminal accusation, but, as a condition precedent to his release, required to pay the illegally exacted amount of the license tax, and could not procure his release from custody otherwise. To this contention of respondent may be aptly applied the language of the Supreme Court of Illinois, used in Harvey v. Olney, 42 Ill. 336: "It would be a reproach to our law if these municipal corporations should be permitted to assume the right to pass ordinances threatening people with heavy fines and a long imprisonment for carrying on a lawful business, and, after extorting a large sum of money for a pretended license by threats of a prosecution, be allowed to come into court and resist repayment by saying, 'Although we did this thing, we had no right to do it, and the ordinance that we pretended was a law was really no law, and these persons should have known better than to have paid us the money.' It is only necessary to say that the town cannot be permitted to defend its wrong by this species of self-stultification. A person to whom a town offers the alternative of paying for a license or undergoing a prosecution before the police magistrate, which would result in fine and imprisonment if the ordinance should be held valid, may certainly pay his money under protest, without losing his rights, and cannot be required to incur the hazard of the magistrate's decision upon the validity of the ordinance, and possibly be driven to a writ of habeas corpus, to relieve himself from imprisonment. Such payment would not be voluntary."

It is further claimed that, whatever the effect of the original payment to Clough was, the final payment to the county was different.

made. The same compulsion which had re quired the original payment to Clough operated as a continuous compulsion on the part of respondent, and eventuated in the payment of the money into the county treasury, and worked no change in the conditions under which Ridenour paid it, and did not render it the less involuntary or compulsory.

There are no further points made in the appeal which we think merit attention.

The judgment of the lower court is reversed, with directions to set aside the judgment entered, overrule the demurrer, and grant leave to the defendant to answer.

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(4 Cal. A. 306) BANCROFT v. RANDALL et al. (Civ. 268.) (Court of Appeal, Third District. California. Sept. 26, 1906. Rehearing Denied Nov. 22, 1906.)

1. SCHOOLS AND SCHOOL DISTRICTS - HIGH SCHOOLS-STATUTES-CONSTRUCTION.

Pol. Code, §§ 1669-1674, regulating the government of high schools are not to be controlled by the provisions of the Code applicable to common schools.

2. SAME-SCHOOLS-ESTIMATE-VOTE.

Pol. Code, § 1670, subd. 4, requires high school boards to furnish to the authorities, whose duties it is to levy taxes, estimates of the cost of a suitable building, and that, when such estimate shall have been submitted, it shall be the duty of the authorities authorized to levy taxes in the high school district to levy a special tax sufficient in amount to erect a high school building, and subdivision 15 declares that the tax shall be computed and entered on the tax roll and collected in the same manner as other taxes. Held, that no vote of the people of a high school district was necessary to authorize a board of supervisors to levy a tax on a proper estimate being made and presented as provided by such section.

3. SAME ESTIMATE-PRESENTATION-TIME.

Pol. Code, § 1670, subd. 14, makes it the duty of a high school board on or before the 1st day of September in each year to send to the proper authorities an estimate of the amount of money required for conducting the school, for the school year, etc. Held that, where an estimate was presented and filed in August and a levy based thereon was made September 21st, there was a sufficient compliance with the statute as to time.

4. SAME FORM OF ESTIMATE.

An estimate in the form of a letter signed by the secretary of the board of trustees of a high school district reciting that, at a meeting of the trustees, etc., the board estimated that

$4,100 additional to the amount on hand would be necessary to the maintenance of the high school for the succeeding year, and that the sum of $10,000 additional to the building fund was necessary to the erection of the proposed high school, wherefore the board requested the board of supervisors of the county to levy a tax for such amounts, was sufficiently formal to warrant the exercise of jurisdiction by the board of supervisors though it was without seal or authenticated otherwise than by the secretary's signature.

5. SAME-STATUTES-CONSTRUCTION.

Pol. Code, § 1670, subd. 6, provides for an election of representatives for the establishment of a high school, which representatives are required to meet to determine the location of the school, and, in case they fail to unanimously agree, provides for an election to determine the site, at which only such sites as have been named by the representatives and certified to the superintendent shall be voted on; that the location receiving the largest number of votes shall be chosen as the location of the high school; and that the representatives may arrange for temporary quarters in some suitable location. Held, that such section referred to the general location of the school as distinguished from the particular lot at the place where the school was located, and therefore did not preclude the levy of a tax for the construction ar maintenance of a high school until a suitable lot had been acquired.

6. SAME-VOTE OF DISTRICT.

Pol. Code, § 1670, subd. 14, requires high school district trustees to furnish the board of supervisors with an estimate of the cost of purchasing a suitable lot as a location for such school, and subdivision 15, gives the supervisors authority to levy the necessary tax to purchase the site. Held, that no vote of the district was necessary to authorize the levy of a tax for the purchase of a high school site. 7. SAME SECURING SITE INJUNCTION PLEADING-PRESUMPTIONS.

In a suit to restrain county supervisors from levying a tax for the construction of a high school building, an allegation that the trustees of the high school district did not, and never had, owned any lot on which to erect a building, was not equivalent to an allegation that no provision had been made for the acquisition of a lot, or that such provision would not be made before the erection of a building. 8. SAME-SEPARATE ESTIMATES-TAX LEVY.

Where a tax levy made by a board of supervisors on an estimate submitted by a board of high school trustees for the construction of a school building was found to be inadequate, the supervisors were not precluded by such levy from making a further levy on a new additional estimate submitted by the school board.

Appeal from Superior Court, Contra Costa County; Wm. S. Wells, Judge.

Suit by Fannie W. Bancroft against E. J. Randall and others, as members of the board of supervisors of Contra Costa county. From a judgment in favor of defendants, and from an order denying an injunction, plaintiff appeals. Affirmed.

J. S. Reid and Curtis Hillyer, for appellant. W. S. Tinning and A. B. McKenzie, for respondent.

CHIPMAN, P. J. The action is to enjoin defendants from levying any special tax upon the taxable property within the Mt. Diablo union high school district, Contra Costa county, "for erecting any building for said district

or for any purpose or purposes kindred thereto." A general demurrer to the complaint was sustained without leave to amend and judgment passed for defendants. The appeal is from the judgment and from the order denying an injunction.

It is alleged in the complaint: That plaintiff is the owner of real estate, as her separate property, situated in said union high school district. That the board of trustees of said district have made what purports to be an estimate of the cost of constructing a building for the use of said district, estimated to cost $10,000, which estimate has been presented to defendants with request that they levy a special tax upon the taxable property of said district sufficient in amount to erect said building. That the estimate so furnished was as follows: "At a meeting of the trustees of the Mt. Diablo union high school held August 20, 1904, the board estimated that the sum of four thousand one hundred dollars ($4,100.00), additional to the amount on hand, would be necessary to the maintenance of the Mt. Diablo union high school for the school year 1904-1905; and also, that the sum of ten thousand dollars ($10,000.00), additional to the building fund already on hand, will be necessary to erect the proposed high school in said district. Therefore, we, the board of trustees of Mt. Diablo union high school ask the Hon. board of supervisors of Contra Costa county to levy such a tax as will raise the aforesaid amounts. Annie Loucks, Sec. Board of Trustees." Indorsed: "Filed Aug. 24, 1904. J. E. Rodgers, Clerk. By J. H. Wells, Deputy Clerk." That said district "does not now, never did, own any lot upon which the, or any, proposed building might be erected." That the said trustees have never been directed by any vote of said district "to purchase, or receive, or select or accept or otherwise acquire, any school lot, or to build any schoolhouse, and no such vote for any purpose has ever been had at all." That about September 1, 1903, said trustees furnished to said board of supervisors what said trustees pretended and what purported "to be an estimate of the construction of a building for the use of said" district, as follows: "The sum of four thousand dollars being necessary to maintain Mt. Diablo union high school for the present school year 1903-1904, the board of trustees of said school ask that your Hon. board levy such a tax as will produce the said sum of four thousand dollars ($4,000.00). They also find that, it being necessary to erect a high school building and improving grounds, erecting windmill, tank, etc., the sum of twenty thousand dollars ($20,000.00) will be necessary to complete the above work, and therefore ask your honorable board to levy such a tax as will produce the said sum of twenty thousand dollars ($20,000.00). Annie Loucks, Secretary Board of Trustees of Mount Diablo Union High School. Indorsed: "In the matter of Mt. Diablo union high school. Estimate

of amount of money required to maintain Mt. Diablo union high school for fiscal year 19034 and to erect building. J. E. Rodgers, Clerk, by J. H. Wells, Deputy Clerk." That, pursuant to said estimate, said trustees procured defendants, on or about September 21, 1903, to levy a special tax upon all the property in said district. That the tax so levied, "in the judgment of the said board of supervisors, was for an amount sufficient to build the said proposed new high school building, aggregating the sum of $5,016.53, according to the report of the county auditor of said Contra Costa county, filed on the 21st day of September, 1903." That "almost all of the aforesaid special tax levied in the year 1903 has been paid to the tax collector of said Contra Costa county * * * and is now in the custody of the county treasurer to the credit of said *** district.' That plaintiff has protested to the defeudants against the levy of any special tax for the erection of any building for said district, on the ground, among others, that said defendants have "no jurisdiction to entertain any such application, ** but said board of supervisors, acting by the defendants herein, threaten to, and unless restrained *** by this honorable court, will levy another special tax upon all the taxable property of said *** district for such amount as in the judgment of the said board of supervisors will be sufficient to erect the said proposed school building," to the injury of plaintiff and other taxpayers of said district: Wherefore, etc. Plaintiff urges want of jurisdiction in defendants to act in the premises, on the grounds, to wit: (1) That the trustees of the high school had never been directed by any vote of the district to purchase, receive, select, accept, or otherwise acquire any school lot or to build any schoolhouse. (2) That no estimate was ever presented for such purposes. (3) That no school site had been selected. (4) That the district owned no lot on which to erect a building. (5) That the first levy was void, and the moneys thus collected cannot be used for the purposes named. (6) That, if the defendants ever had jurisdiction to levy any tax, it was exhausted by the making of the first levy.

It is urged that the board of supervisors have no power to levy special taxes for school purposes except such as are conferred by statute; that it can levy such taxes for a union high school only upon an estimate made by the school trustees. Pol. Code, § 1670, subd. 14. It is next contended that these trustees have only such powers as are conferred by the same Code, section 1670, subdivision 11, which, it is claimed, are the same as those of boards of common school trustees; that such latter school trustees can build school houses or purchase or sell school lots only "when directed by a vote of their district." Pol. Code, § 1617, subd. 5. It is hence argued that, as by no vote were the trustees ever directed to build a schoolhouse,

no authority rests in the board of supervisors to levy the tax. Many of the provisions of the high school acts, as set forth in sections 1669 to 1674 inclusive of the Political Code were given careful and somewhat extended examination and construction in People v. Lodi High School District, 124 Cal. 694, 57 Pac. 660. It would be useless repetition to again explain the scope and meaning of the provisions which established our high school system of education. The authority there given to levy taxes for the maintenance of these schools flows from the same source as the authority to levy taxes for constructing buildings in which the schools are to be held, and the latter power is co-extensive with the former. Subdivision 14 of section 1670 makes it the duty of the high school board "to furnish to the authorities whose duty it is to levy taxes *** an estimate of the cost of erecting a suitable build

ing, " and to furnish such estimate to such authorities (the board of supervisors here). "When such estimate shall have been made and submitted it shall be the duty of the authorities whose duty it is to levy taxes in said * * * high school district to levy a special tax upon all the taxable property of said * high

school district, sufficient in amount to *** erect the building. * * * Said tax shall be computed, entered upon the tax roll, and collected, in the same manner as other taxes are computed, entered and collected." Subd. 15, § 1670, Pol. Code. In speaking of the scheme of taxation provided by these sections to maintain high schools, the court said in the Lodi High School District Case, supra: "It is within the power of the Legislature to constitute these schools and to provide for their support by methods different from those adopted for like purposes as to other schools." It is true the point under discussion was whether the law is obnoxious to constitutional objection as being special legislation. But the reasoning leads also to the conclusion that the provisions of the high school acts are not to be controlled by the provisions relating to the common schools. See, also, Brown v. City of Visalia, 141 Cal. at p. 382, 74 Pac. 1042. In our opinion no vote of the people of the district was necessary to authorize the defendants to act, upon a proper estimate being made and presented as provided in the act.

Objection is raised to the sufficiency of the estimate in matter of form and substance. It is claimed that subdivision 14, § 1670 requires the estimate to be presented on September 1st. It was filed in August and the defendants made the levy, as alleged in the complaint, on September 21st. This was a sufficient compliance with the law as to time. The objection that the document is not an estimate but a mere letter, without seal or other authentication, and is but "the conclusions of the so-called secretary" is without merit. The section prescribes no particular

form for the estimate, nor does it call for details. If the supervisors should deem it insufficient they could call for specifications or refuse to act upon it. The estimate was sufficient as a basis for the exercise of jurisdiction by the board of supervisors who act in a quasi judicial capacity in the matter; (Lodi High School Case, supra). We think the estimate sufficiently shows the source whence it emanated and is sufficiently authenticated. It was not necessary that all the trustees should attach their names to it.

***

The

It is alleged in the complaint "that the said trustees have never been directed by any vote of the said district to purchase, or receive, or select or accept or otherwise acquire, any school lot, or to build any schoolhouse." It is argued first, that subdivision 6 of section 1670 refers to the lot on which the building is to be erected; and, second, that the district must own the lot before the supervisors can make the levy for the schoolhouse and that the lot must be selected by vote of the district. The meaning of subdivision 6 is not entirely clear, but we think it refers to the general location of the school and not to the particular lot at the place where the school is to be located. The union high school district is made up of several common school districts, and, before it can be known upon what particular lot of ground the schoolhouse is to be erected, the general locality or town within some one of the common school districts must be determined. The act provides that the district may maintain the school without owning any building by leasing suitable premises (subd. 6, § 1670). No lot could have been purchased until the general location of the school had been decided upon. clause of the complaint above quoted is not inconsistent with the existence of the fact that the district either owns a lot by gift or has made provision for so or otherwise acquiring one. The averment is that the trustees have never been "directed by any vote to purchase a lot." The statute points out the method of purchasing or acquiring the lot. Subdivision 14 requires the trustees to furnish the board of supervisors "an estimate of the cost of purchasing a suitable lot," and subdivision 15 gives the supervisors authority to levy the necessary tax "to purchase the site," when such estimate is made. It is not necessary that there should be a vote of the district as in the case of purchasing a lot for a common schoolhouse. The authority to purchase the lot is the same as the authority to provide for the maintenance of the school or the erection of a suitable building or the leasing of a suitable building. These are to be accomplished by an estimate of the cost, presented by the trustees to the supervisors to be followed by the necessary tax levy. It might be more satisfactory to the supervisors to know, when the estimate for a building is presented, that the lot has been provided for, or that,

if not, the estimate included the cost of the lot also. But it must be presumed that both the trustees and the supervisors will discharge their duties in accordance with law and it cannot be assumed in this action that the supervisors will act improvidently or in violation of law. Besides, we do not think that there is anything in the statute to prevent the trustees and the supervisors from making provision for the building before a lot is provided for.

It appears from the complaint that the estimate made in 1903 for a building, improvements, etc., was $20,000 and that the levy made realized only something over $5,000, most of which is now in the treasury to the credit of the building fund; that the estimate of 1904 calls for $10,000 "additional to the building fund now on hand." It is not alleged that the amount raised by the first levy was sufficient to build the schoolhouse, nor does it appear that that amount was the amount which the supervisors intended to raise by the levy. The averment is that the supervisors will, unless restrained, "levy another special tax * * * for such an

amount as * ** will be sufficient to erect the said proposed building." It is claimed, under Martin v. Board of Supervisors, 103 Cal. 66S, 37 Pac. 758, that there is no power given to levy the tax for a building unless the district has a lot; that estimates cannot be made separately, for the site only or the building only. In the Martin Case cited, the action was mandamus to compel the supervisors to estimate the cost of a county high school building. No legal provision had been made for the purchase of a lot and presumably the supervisors were unwilling to proceed until this was done. All that the court was called upon to decide was whether their judgment could be controlled to provide for a building when the statute gave them the power to provide for acquiring a lot and erecting a building by the same estimate. It was not necessary to the decision that before they could estimate for a building they must have first become the owner of a lot. However this may be, the complaint here avers only that the trustees do not now, and never did, own any lot. But they may have made provision for a lot, and we must assume if they have not that they will do so before erecting any building.

There seems to be no special provision for estimating the cost of the building and making levies of taxes by installments or for making additional levies of taxes to complete unfinished work. A reasonable construction should be put upon the statute such as would effectuate its main object if it can be done without violating settled principles of construction. Here the first estimate was for $20,000, of which only $5,000 was raised by the levy. The second estimate is for $10,000 additional to the fund on hand, alleged to be $5,000, or about that sum. We

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