
    [L. A. No. 1118.
    Department One.
    February 12, 1904.]
    E. P. JUSTICE, Appellant, v. F. M. ROBINSON, Tax-Collector, etc., Respondent.
    Action to Recover Taxes Paid—Fatally Defective Protest—Insufficient Complaint—Amendment—Dismissal of Action.—In an action to recover taxes paid, where the complaint was radically defective, and not amendable so as to state a cause of action, by reason of a fatal defect in the notice of protest made part thereof, the court properly refused to admit the notice of protest in evidence, and dismissed the action, and the plaintiff could not have been prejudiced in not allowing him leave to amend the complaint, for which he did not. ask, and which could not have benefited him.
    Id.—Taxes in Drainage District—Protest—Common-Law Rule— Voluntary Payment.—The Drainage Act of 1897 did not adopt the Political Code in reference to the collection of taxes, and did not provide that a payment of taxes in a drainage district under protest should be regarded as voluntary; and the general common-law rule as to the payment of taxes under protest, in the absence of statutory provision, applies to such payment. Where the notice of protest merely assailed the legality of the drainage district and the validity of the assessment and levy of the tax, and did not show any acts amounting to duress or coercion, it is insufficient to divest the payment of its voluntary character; and one who is deemed to have made such voluntary payment has no right of action to recover the same.
    APPEAL from a judgment of the Superior Court of Orange County. J. W. Ballard, Judge.
    The facts are stated in the opinion of the court.
    McKelvey & Bowes, for Appellant.
    Victor Montgomery, for Respondent.
   VAN DYKE, J.

The action was brought to recover back taxes paid to the defendant, a tax-collector of Orange County, and ex officio tax-collector of Bolsa Drainage District, under protest. The defendant’s demurrer to the complaint was overruled, and thereupon an answer was served and filed. Upon motion by plaintiff certain defenses set up in the answer were stricken out by the court. Thereafter the ease was set for trial, and the parties appearing in court, and a jury being waived, the plaintiff was called as a witness, whereupon defendant objected to the introduction of any evidence, on the ground that the complaint did not state facts sufficient to constitute a cause of action. The court sustained the objection of the defendant, and thereupon dismissed the action. The appeal is taken from the judgment entered upon the dismissal.

Appellant claims that it was error upon the part of the court to dismiss the action as stated, without a formal motion being made for that purpose, contending that the plaintiff could have met such motion by asking leave to amend its complaint. But the plaintiff was present in court by counsel, and had an opportunity then and there to ask such leave, and failed to do so, simply reserving an exception to the ruling of the court. Besides, no possible benefit could have been derived by the plaintiff if the cause had been left pending in the court after the refusal to hear evidence in the case. It is quite true, as suggested by the appellant, that the objection to the introduction of evidence raised practically the same question which had been decided by the court in overruling the demurrer. Still, the court upon further consideration of the ease may have arrived at the conclusion, and probably did, that the complaint was fatally defective, and that the demurrer should have been sustained instead of being overruled. The complaint, however, could not have been amended so as to state a cause of action, for the reason that the notice of protest itself was fatally defective, and that, of course, could not be amended. The plaintiff, therefore, was not prejudiced in not being allowed leave to amend. In the notice of protest attached to and made a part of the complaint, it is stated that the Bolsa Drainage District was not legally formed; that the assessment was not made by duly elected and qualified assessment commissioners; that they did not make any assessment of plaintiff^ land and return the same to the board of directors; that no certified assessment-rolls had ever been returned to the tax-collector of any assessment in said district; and that the tax was wholly void and levied contrary to law.

The general rule in reference to the payment of taxes under protest, where not controlled by some statutory provision, is, that in the absence of acts amounting to duress or coercion the payment is deemed to be voluntary, and a mere protest made at the time of such payment does not divest it of its voluntary character. Where there is no legal compulsion, the legal effect of the payment is not impaired by protest. (McMillan v. Richards, 9 Cal. 417 ; Bucknall v. Story, 46 Cal. 597; Bank of Woodland v. Webber, 52 Cal. 73; Wills v. Austin, 53 Cal. 152; Dean v. Varnum, 80 Cal. 86.) Therefore, according to the statement in the notice of protest, the plaintiff was under no legal compulsion whatever to pay said taxes, and the payment, in law, was made voluntarily upon his part, and he has no right of action to recover the same. The amendment to the Political Code of 1893 (see. 3819), providing that a payment of taxes under protest shall not be regarded as voluntary, applies to the collection of state and county taxes only. It provides that in case suit be brought for the recovery of taxes so paid, and judgment is recovered, it “shall be entered against such county therefor,” and in case such tax or portion thereof may have been paid by the .county treasurer into the state treasury it “shall be regarded as an amount due the county from the state, and shall be deducted in the next settlement had by the county with the controller.” The Drainage Act of 1897 (Stats. 1897, p. 334), under which this case arose, does not contain any such provision, nor did it adopt the Political Code in reference to the assessment and collection of state and county taxes; and the rule as at common law applies in this case.

Judgment affirmed.

Angellotti, J., and Shaw, J., concurred. 
      
       70 Am. Dec. 655, and note.
     
      
       13 Am. Eep. 220.
     