This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Payment of an illegal license fee made under duress may be recovered.1 A voluntary payment of an illegal license fee cannot be recovered.2 Here again under harmony in general propositions we find marked divergence of authority in applying these general propositions to specific cases. Where arrest is threatened for conducting a business and the like without paying such license fee,3 or according to some authorities, where the statute or ordinance imposing such license makes nonpayment a crime, though no immediate arrest is threatened,4 or where non-payment will result in exclusion from the right to do business in the state and no mode of redress or opportunity for a hearing is given,5 such payment is held to be made under duress. So the expense of abating a nuisance on demand of health authorities may be recovered by a property owner where the duty of abating such nuisance really rests on the sanitary authorities and a refusal to comply with the demand would render the property owner prima facie liable to a penalty.6 In some of the cases denying the right to recover, the voluntary character of the payment is quite clear. Thus payment of a license voluntarily made to a board which has no legal authority to issue such licenses cannot be recovered.7 So a voluntary payment of a license fee by one who subsequently abandons the business because he is unable or unwilling to file a bond as required by law cannot be recovered.8 In other cases a right to recover is denied under circumstances which seem to show what to the ordinary mind looks very like compulsion. Thus payment made on receipt of a circular threatening to enforce the law,9 or under threat of criminal prosecution,10 has been held not to be made under duress.
15 State v. Elizabeth, 51 N. J. L. 485; 18 Atl. 302; Fuller v. Elizabeth, 42 N. J. L. 427; Elizabeth v. Hill, 39 N. J. L. 555; Trimmer v. Rochester, 130 N. Y. 401; 29 N. E. 746. Contra, that it is not necessary that such assessment be first set aside if valid on its face, but levied by assessors who had no jurisdiction to make such levy. Bruecher v. Port Chester, 101 N. Y. 240; 4 N. E. 272.
1 Walsh v. Denver, 11 Colo. App. 523; 53 Pac. 458; Harrodsburg v. Renfro (Ky.), 51 L. R. A. 897; 58 S. W. 795; Bruner v. Clay City, 100 Ky. 567; 38 S. W. 1062; Catoir v. Watterson, 38 O. S. 319; Marshall v. Snediker, 25 Tex. 460; 78 Am. Dec. 534; Newmann v. La Crosse, 94 Wis. 103; 68 N. W. 654.
2 Helena v. Dwyer, 65 Ark. 155; 45 S. W. 349; Maxwell v. San Luis Obispo, 71 Cal. 466; 12 Pac. 484; Wilmington v. Wicks, 2 Marv. (Del.) 297; 43 Atl. 173; Tatum v.
Trenton, 85 Ga. 468; 11 S. E. 705; (Town of) Ligonier v. Ackerman, 46 Ind. 552; 15 Am. Rep. 323; Providence v. Shackelford, 106 Ky. 378; 50 S. W. 542; Maysville v. Melton, 102 Ky. 72; 42 S. W. 754; Fuselier v. St. Landry Parish, 107 La. 221; 31 So. 678; Baker v. Fairbury, 33 Neb. 674; 50 N. W. 950; People v. Wil-merding, 136 N. Y. 363; 32 N. E. 1099; Shelton v. Silverfield, 104 Tenn. 67; 56 S. W. 1023; Noyes v. State, 46 Wis. 250; 32 Am. Rep. 710; 1 N. W. 1; Van Buren v. Downing, 41 Wis. 122.
3 Toledo v. Buechle, 21 Ohio C. C. 429; Douglas v. Kansas City, 147 Mo. 428; 48 S. W. 851; Newmann v. La Crosse, 94 Wis. 103; 68 N. W. 654.
4 Chicago v. Sperbeck, 69 111. App. 562. Contra, Helena v. Dwyer, 65 Ark. 155; 45 S. W. 349; Betts v. Reading, 93 Mich. 77; 52 N. W. 940.