
    BEACHLAWN BUILDING CORPORATION v. CITY OF ST. CLAIR SHORES.
    1. Municipal Corporations — Building Permits — Illegal Pees.
    Applicant for building permits whieh paid fees under invalid amendments to city ordinance requiring such permits was entitled to recover such payments, since they had been made involuntarily in order to proceed with business of building houses.
    2. Same — Building Permit — Payment op Illegal Pees Under Protest — Evidence.
    Protest of payment of an involuntarily paid invalid building permit fee held, not an essential element of applicant’s action to recover such fees which had been exacted by city in order to obtain building permits that had been validly required, hence evidence that such fees had not been paid under protest was properly excluded.
    3. Same — Building Permit Pees — Judgment.
    Applicant for validly required building permits which defendant city would not issue unless applicant paid fees required by an invalid amendment to the ordinance requiring the permit was entitled to directed verdict and judgment for the undisputed amount of the illegal exactions.
    References for Points in Headnotes
    [1, 3] 38 Am Jur, Municipal Corporations § 380.
    40 Am Jur, Payment §§ 161,176, 179.
    
       40 Am Jur, Payment § 180.
    Appeal from Macomb; Vander Wal (John H.), J., presiding.
    Submitted June 9, 1965.
    (Calendar No. 4. Docket No. 50,633.)
    Decided October 4, 1965.
    Be-hearing denied January 5,1966.
    Action by Beachlawn Building Corporation, a Michigan corporation, against the City of St. Clair Shores, a municipal corporation, to recover excessive fees paid for building permits under invalid ordinances. Directed verdict and judgment for plaintiff. Defendant appeals.
    Affirmed.
    
      Schuur & Keating (Patrick J. Keating, of counsel), for plaintiff.
    
      John H. Yoe, for defendant.
   Souris, J.

In Beachlawn Building Corporation v. City of St. Clair Shores (1963), 370 Mich 128, we reversed the trial judge’s grant of defendant’s motion for directed verdict made at the close of plaintiff’s proofs. In the process of reaching that decision our opinion stated the law of the case to be applied in the new trial ordered. The law of the ease, as we restated it soon thereafter in Theatre Control Corp. v. Detroit (1963), 370 Mich 382, 388, is that Beachlawn is entitled to maintain an action to recover fees paid by it for building permits under an ordinance which was held to be invalid in Merrelli v. City of St. Clair Shores (1959), 355 Mich 575. While the record before this Court in the 1963 Beachlawn Case contained evidence that Beachlawn had protested payment of some, if not all, of the fees exacted from it for building permits, such evidentiary proof was not essential to plaintiff’s assertion of a cause of action according to the rationale of our decision. The controlling issue in such cases, we said, is whether the payments made were voluntary or under compulsion or duress so as to be involuntary and not whether the payments were made under protest. Since plaintiff could not have proceeded safely to build houses without permits from defendant, required by valid ordinance antedating the amendments declared invalid in Merrelli, supra, we concluded that plaintiff’s payments were involuntary because plaintiff had to pay what defendant demanded or give up its business. In support we cited Pingree v. Mutual Gas Co. (1895), 107 Mich 156; and City of Saginaw v. Consumers Power Co. (1943), 304 Mich 491, and other earlier decisions of this Court.

On the retrial, defendant offered evidence that plaintiff had not protested payment of the invalid building permit fees notwithstanding our opinion in the 1963 appeal in which we said that the fact of protest was not an essential element of plaintiff’s case. The trial judge correctly excluded proof of such evidence, plaintiff’s right to recover the amount paid even absent protest, because paid involuntarily, having been determined in the 1963 appeal.

Plaintiff, on the retrial, having proved the amount paid without contradiction by defendant, was entitled to the directed verdict and judgment in its favor.

All other questions raised by defendant in this appeal were considered and decided in Merrelli, supra.

Affirmed. Costs may he taxed in plaintiff’s favor.

T. M. Kavanagh, C. J., and Dethmers, Kelly, Smith, O’Hara, and Adams, JJ., concurred with Souris, J.

Black, J., concurred in result.  