OWEN F. ROONEY, Appellant, v. R. W. SNOW, Auditor of City of Oakland, Respondent, 131 Cal. 51

VAN DYKE, J. In April, 1898, the city council of the city of Oakland passed an ordinance, the first

section of which reads as follows: “The sum of one thousand dollars is hereby appropriated from the general fund of the city of Oakland for the year 1897-98 to pay the claim and demand of Owen E. Rooney for moneys erroneously collected by the city of Oakland from said Owen F. Rooney and paid by him under protest as liquor license for the saloon and restaurant kept by said Owen F. Rooney at the end of the Oakland pier.” By the second

section of the said ordinance the auditor is directed' to draw his warrant in favor of said Rooney for the sum of one thousand dollars, and the treasurer of the city is ordered to pay said warrant. The respondent Snow, as auditor of the city of Oakland, refused to draw his warrant upon the treasurer, as required by said ordinance. Thereupon the plaintiff applied to the superior court of Alameda county for an alternative writ of mandate against said respondent, as such auditor, requiring him to show cause why he did not draw a warrant in favor of the plaintiff, as required by said ordinance.

The respondent demurred to plaintiff’s petition, and the lower court sustained the demurrer; plaintiff declining to amend, judgment was entered in favor of the defendant for costs, from which judgment this appeal is taken. The appellant relies upon said ordinance as the foundation of his claim and maintains that the auditor of said city has no discretion in the matter, but merely a ministerial duty to perform in drawing the warrant in accordance with the ordinance. By

section 40 of the charter of the city of Oakland every demand, before it can be paid, must be presented to the auditor to be approved, “who shall satisfy himself whether the money is legally due and remains unpaid, and whether the payment thereof from the treasury of the city is authorized by law, and out of what fund. After such examination he shall approve or reject the claim in whole or in part, and indorse upon such demand his approval or rejection over his signature, together with the date thereof. If it is approved, the fund out of which it is to be paid shall be designated.

If the claim is rejected, or any part of it, unless the party presenting it is willing to take in full of the entire demand the sum offered, the auditor shall return it to the council, board, or other body which originally authorized it, then if it is allowed by a majority vote of all the members of the council, or of the members of the board or other body authorizing it, and approved by the mayor, it can be audited in the same manner as if it had not been rejected; provided, the said council, board, or other body had the authority to make the expenditure out of which the claim arose.” (Stats. 1889, p. 531.) It is manifest from the city charter that the powers conferred and the duties imposed on the auditor in the premises require the exercise of judgment and discretion, and not merely the performance of clerical or ministerial duties.

And this power conferred upon the auditor comes from the same source as that conferred upon the city council, and is of equal rank. The city council has no power to direct the auditor to audit an illegal claim, or to draw his warrant for payment of the same, or one which there is no authority in law to allow; and if the council should pass such an ordinance the auditor would not be required to carry out the direction, but it would be his plain duty to refuse to do so—he must “satisfy himself whether the money is legally due.” As said in Von Schmidt v.

Widber, 105 Cal. 151, “powers of a municipality are to be exercised through its legally constituted agents, and the authority of such officer, board, or department to exercise any of the corporate power with which a municipality has been clothed must be distinctly conferred upon that officer, board, or department, or its acts create no obligation against the municipality.” The only statement in the petition in reference to the nature of the plaintiffs demand is contained in the said ordinance which is set out in said petition.

And the language of the ordinance is that the claim is for money erroneously collected by the city of Oakland from said Eooney for a liquor license for his saloon and restaurant kept by him at the end of Oakland pier. But the petition does not show how or why the money was erroneously collected. It appears, however, that in Oakland v. Oakland Water Front Co., 118 Cal. 160, this court held that “ship channel,” being the western boundary line of the city of Oakland, was the line of ordinary low tide.

The end of the Oakland pier, at which point this plaintiffs saloon and restaurant were kept, was discovered not to be within the city of Oakland. The plaintiff and others were supposed to know where the boundary lines of the city of Oakland were as well before as since the decision in question; the charter of the city of Oakland, defining its boundaries, is a public statute, and the lines were not altered or changed by such decision, but simply defined according to the act itself.

The payment of the license by Eooney, although it was stated in the ordinance to have been under protest, was, nevertheless, voluntary on his part, and as such cannot be recovered back. “The illegality of the demand paid constitutes,, of itself, no ground for relief. There must be in addition some compulsion or coercion attending its assertion, which controls the conduct of the party making the payment.” (Brumagim v. Tillinghast, 18 Cal. 265.) In Maxwell v.

San Luis Obispo, 71 Cal. 466, the plaintiff alleged that the moneys sued for were exacted and collected by the tax collector without authority of law, and as a condition precedent to the carrying on of business, and by threats and menaces of legal prosecutions, suits, actions, processes, attachments, seizures, confiscations, and sequestrations which he, the said tax collector, gave out and made for the purpose of causing the payment of said moneys, and that said moneys were all paid under and by reason of said threats and menaces, and would not have been paid but for such threats and menaces.” Yet this court in its decision says: “The tax collector had no real or apparent power to execute the threats of seizure, confiscation, and sequestration.

The law under which he assumed to exact license taxes authorized him to direct suits to be brought for the recovery of such taxes, and to have attachments issued in such actions”; and adds that the plaintiff was “not liable to anything bejumd civil and criminal prosecutions in which the invalidity of the law which authorized the collection of the taxes would have been a perfect defense.” Many; eases are referred to in support of this view of the court, which it is unnecessary here to quote.

It was held in that case that the complaint did not state a cause of action for the recovery of money, and -the judgment was reversed, with directions to the court below to sustain the demurrer to the complaint. In Phelan v. San Francisco, 120 Cal. 1, it is said that in order to constitute a payment under duress there must be some coercion or compulsion or some exercise of authority over the person or property of the party making the payment which controls his action, and which can be avoided only by making the payment.

Hor does the payment of the taxes under protest of such party take from the payment its voluntary character unless it. is necessary in order to protect his person or property. To the same effect are O'Brien v. Colusa County, 67 Cal. 503, and Grimley v. Santa Clara County, 68 Cal. 575. The payment of the license taz by the appellant was voluntarily made under the supposition, doubtless, that his place of business was within the city of Oakland.

But because that turns out not to be so the character of the payment is not altered; in law it is still deemed to be a voluntary payment, and the city is not responsible in the matter nor required to refund the money so paid. This being so, the ordinance under consideration is without authority of law and invalid, and the respondent was fully justified in refusing to follow its direction. Judgment affirmed. Garoutte, J., and Harrison, J., concurred. Hearing in Bank denied. 79 Am. Dec. 176.