Precisely what facts amount to compulsion, in these tax cases, is a question not free from difficulty. Actual arrest;1 threats of immediate arrest by one who has apparent authority;2 seizure and sale of personal property;3 or seizure alone;4 or threats of immediate seizure;1 any of these is obviously sufficient (see ante, Sec. Sec. 214, 216). On the other hand, threats of a civil action,2 or of a criminal prosecution, made under circumstances which do not create a reasonable fear of immediate arrest,3 are not enough (see ante, Sec. 215). Indeed there are cases which insist that nothing short of threats of immediate arrest or seizure of goods will suffice.4 By the weight of authority,
1 Wheeler v. County of Plumas, 1906, 149 Cal. 782; 87 Pac. 802; Dist. of Columbia v. Chapman, 1905, 25 App. D. C. 95. But see Bean v. Middlesboro, 1900, 22 Ky. Law Rep. 415; 57 S. W. 478.
2 Town of Magnolia v. Sharman, 1885, 46 Ark. 358; Chicago v. Klinkert, 1900, 94 111. App. 524; Douglas v. Kansas City, 1898, 147 Mo. 428; 48 S. W. 851; Neumann v. City of La Crosse, 1896, 94 Wis. 103; 68 N. W. 654. And see Buckley v. Mayor of N. Y., 1898, 30 App. Div. 463; 52 N. Y. Supp. 452, (off. 159 N. Y. 558; 54 N. E. 1089).
3 Bailey v. Goshen, 1865, 32 Conn. 546; Hennel v. Board of Commrs., 1892, 132 Ind. 32; 31 N. E. 462; Dow v. First Parish in Sudbury, 1842, 5 Metc. (Mass.) 73 ; Newman v. Supervisors of Livingston County, 1871, 45 N.Y. 676; American Bank v. Mumford, 1857, 4 R. I. 478. See Guaranty Trust Co. v. City of New York, 1905, 108 App. Div. 192; 95 N. Y. Supp. 770.
4 Lindsey v. Allen, 1897, 19 R. I. 721; 36 Atl. 840.
1 Dist. of Columbia v. Glass, 1906, 27 App. D. C. 576; Howard v. Augusta, 1882, 74 Me. 79; First Nat. Bank. v. Watkins, 1870, 21 Mien. 483; Lyon v. Receiver of Taxes, 1883, 52 Mich. 271; 17 N. W. 839; Dale v. City of New York, 1902, 71 App. Div. 227; 75 N. Y. Supp. 576. And see Hubbard v. Brainard, 1869, 35 Conn. 563; Wood-mere Cemetery Assn. v. Township, 1902, 130 Mich. 466; 90 N. W. 277; Kelley v. Rhodes, 1898, 7 Wyo. 237; 51 Pac. 593; 39 L. R. A. 594; 75 Am. St. Rep. 904.
2Falvey v. Board of County Commrs., 1899, 76 Minn. 257; 79 N. W. 302. And see Mayor, etc., of Baltimore v. Lefferman, 1846, 4 Gill (Md.) 425; 45 Am. Dec. 145.
3 Southern R. Co. v. Mayor of Florence, 1904, 141 Ala. 493; 37 So. 844; Maxwell v. San Louis Obispo, 1886, 71 Cal. 466; 12 Pac. 484; Williams v. Stewart, 1902, 115 Ga. 864; 42 S. E. 256; Betts v. Village of Reading, 1892, 93 Mich. 77; 52 N. W. 940; Claflin v. McDonough, 1863, 33 Mo. 412. But see Hill v. Dist. of Columbia, 1889, 18 D. C. (7 Mackey) 481; Harvey v. Town of Olney, 1866, 42 111. 336.
In Hill v. Dist. of Columbia, supra, the court said (p. 489): "To say that a man who pays money must be held to have acted freely unless he did it under pressure of immediate and urgent necessity, suggests a high standard of pluck and manhood, but in transactions with the Government it is not a fair or reasonable test. When a demand is made by an official, known to have at his back, even though he may not threaten to use them, the penalties of the law, the individual citizen does not stand on an equal footing in the dealing."
4 See Raisler v. Mayor of Athens, 1880, 66 Ala. 194; First Nat. Bank of Americus v. The Mayor, 1881, 69 Ga. 119; 45 Am. Rep. 476; Commrs. of Wabaunsee County v. Walker, 1871, 8 Kan. 431; Mayor, etc., of Baltimore v. Lefferman, 1846, 4 Gill (Md.) 425; 45 Am. Dec. 145; Cincinnati, etc., R. Co. v. Hamilton County, 1908,120 Tenn. 1; 113 S. W. 361; Sowles v. Soule, 1887, 59 Vt. 131; 7 Atl. 715. In Rumford Chemical Works v. Ray, 1896, 19 R. I. 456, 459; 34 Atl. 814, Matteson, C.J., said: "The origin of the doctrine of 'immediate and urgent' necessity seems to have been the dictum of Lord Kenyon in Fulham v. Down, 6 Esp. 26, 'that where a voluntary payment was made of an illegal demand, the party knowing the demand to be illegal, without an immediate and urgent necessity (or, as expressed by Mr. Bearcroft, unless to redeem or preserve your person or goods), it is not the subject of an action for money had and received.' " however, if an officer to whom a warrant has been delivered, authorizing him to seize and sell personal property, or who has himself authority to issue such a warrant, manifests an intention to enforce the payment of the tax by seizure and sale at any time, the owner of the property is under compulsion and may recover money paid for the purpose of preventing such seizure and sale.1 The following expressions of this view are frequently quoted:
Preston v. City of Boston, 1831, 12 Pick. (Mass.) 7: Shaw, C. J. (p. 14): "But the warrant to a collector, under our statute for the assessment and collection of taxes, is in the nature of an execution, running against the person and property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability. Where therefore a party not liable to taxation, is called on peremptorily to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable, recover it back, as money had and received."
Parcher v. Marathon County, 1881, 52 Wis. 388; 9 N. W. 23; 38 Am. Rep. 745: Lyon, J. (p. 392): "We think it must be held, on principle and authority, that the payment of a demand under compulsion of legal process, such payment being accompanied by a protest that the demand is illegal and that the payer intends to take measures to recover back the money paid, is not a voluntary payment. And further, to constitute compulsion of legal process it is not essential that the officer has seized, or is immediately about to seize, the property of the payer by virtue of his process. It is sufficient if the officer demands payment by virtue thereof, and manifests an intention to enforce collection by seizure and sale of the payer's property at any time."
As to payments made before the collecting officer has actually evinced an intention to enforce collection, there is a much sharper divergence of judicial opinion.1 Upon principle and by analogy to the case of money paid upon a judgment (ante, Sec. 229 et seq.), it would seem that if the collecting officer has no discretion in the matter, but is required by law, in case of nonpayment of the tax, to collect the same by the seizure and sale of property, a recovery should be allowed. It is reasonable to assume that the officer will perform his duty, and idle to say that there is no duress until by overt act he has shown his intention so to do. If, on the other hand, the collector is authorized by law to proceed either by summary levy or by an action in which the defendant may appear and contest the validity of the tax, a payment made before the officer has evinced his election to proceed summarily should not be recoverable.2
1 Boston and Sandwich Glass Co. v. Boston, 1842, 4 Metc. (Mass.) 181; Atwell v. Zeluff, 1872, 26 Mich. 118; St. Anthony Elevator Co. v. Soucie, 1900, 9 N. D. 346; 83 N. W. 212; 50 L. R. A. 262; Rum-ford Chemical Works v. Ray, 1896, 19 R. I. 456; 34 Atl. 814.