GARRISON et al. v. TILLINGHAST, 18 Cal. 404

Field, C. J. delivered the opinion of the Court Baldwin, J. and Cope, J. concurring. The plaintiffs base their claim to a recovery in this action on two grounds: 1st, that the Act of April, 1858, so far as it imposes a stamp tax upon tickets of passage on any vessel or steamship from this State to any place out of the State, is repugnant to the Constitution of the United States; 2d, that the payments to the defendant in the purchase of stamps for tickets issued by them, were made under compulsion or coercion.

It is unnecessary, for the determination of the present appeal, to pass upon the first ground—the constitutionality of the Act in the particular mentioned. The conclusions to which we have arrived upon the second ground, dispose of the case without reference to the character of the act. We do not find in the complaint any allegations which show that the purchase of the stamps by the plantiffs, and the payments to the defendant were the result of any compulsion or coercion on his part. Nor, indeed, could there be any such allegations consistent with the provisions of the act to which the complaint refers.

The act provides that stamps shall he deposited with him to be disposed of to applicants at a fixed price, but it does not invest him with any power to compel parties to take them and use them. If the price, fixed by the act is paid to him, he delivers the stamps as they are applied for, but if not paid, he retains them in his possession. So far as he is concerned, parties are at liberty to purchase, or to refrain from purchasing.

The compulsion or coercion, therefore, which controlled the conduct of the plaintiffs in the present case, did not arise from any action of the defendant, but arose, according to the complaint, from the fact that the act stood on the statute book- with provisions declaring that instruments issued after the first of July, 1857, charged with the payment of the stamp tax, should not be admitted in evidence in any Court, or be available in law or equity, unless stamped or marked as prescribed therein.

By reason of these provisions, says the complaint, the plaintiffs were unable to sell passage tickets for the steamers, unless they were stamped, and in order to carry on their business they were thus forced to purchase, and did -purchase the stamps of the defendant. The influence exerted by those provisions does not constitute that kind of compulsion or coercion, which the law recognizes as suEcient to render a payment in a legal sense involuntary.

The compulsion or coercion must come from the party to whom or by whose direction the payment is made, and arise from the exercise or threatened exercise of some power possessed, or supposed to be possessed by him, over the person or property of the party making the payment. (See Brumagim v.

Tillinghast, decided at the present term, and the cases there cited.) If the provisions referred to are constitutional, then there is no basis for the action; if they are unconstitutional, and the plaintiffs were ignorant of this at the time, the case becomes only one where a recovery is sought because a payment is made under a mistake of law, a ground which cannot avail; but if the plaintiffs knew the act to be unconstitutional, as they protested it was, then the case is only an attempt to recover an illegal demand, voluntarily paid, knowing it to be illegal at the time, and is not, of course, entitled to any consideration.

The tax imposed by the law evidently falls upon the passenger, and not upon parties who issue the tickets, whether they are the masters, agents or owners. If the latter purchase the stamps, they either collect the amount paid from the passengers, or add it to the price of their tickets. Such is the ordinary course of business in transactions of this kind. The case does not, therefore, come before the Court with any equitable considerations in its favor.

If the plaintiffs were allowed to recover, they would, no doubt, obtain what has been either directly, or indirectly in the enhanced price of the tickets issued to them, already paid by the passengers. Judgment affirmed. Cope, J. I concur, with the the same qualification expressed by me in the case of Brumagim v. Tillinghast.