I dissent.
It is noted that this matter is before us on appeal from an order of dismissal under Code of Civil Procedure section 581, subdivision 3, made following the sustaining of a demurrer without leave to amend. The ma*812jority opinion affirms holding in effect that the facts pled disclose, as a matter of law, that plaintiff, in paying the tax in question, was a volunteer and therefore has no legal right to seek reimbursement from the city. I cannot subscribe to the reasoning or the result of such a conclusion as to the portion of the tax absorbed and paid by this retailer.
While it is true that the ordinance in question, Los Angeles City Ordinance No. 136,900 (Los Angeles Municipal Code, § 21.5.03.1), attempts to levy the tax upon the consumer, the ordinance requires the retailer to collect and remit the amount due to the city clerk (subsec. (e)) and provides that the “tax so collected by the retailer constitutes a debt owed by the retailer to the city. . . .” (§ 21.5.09.) It is clear that, regardless of his designation as tax collector, the retailer has the obligation to pay the tax as well as to maintain the accounting procedures and perform the other administrative duties required by the terms of the ordinance at its own expense. In Century Plaza Hotel Co. v. City of Los Angeles, 7 Cal.App.3d 616, 622-623 [87 Cal.Rptr. 166], the court held, in declaring the ordinance in question invalid, that in effect it imposed a tax upon the sale as distinguished from the purchase of distilled spirits.
In the case at bar the complaint alleged in part as follows:
“VII
That plaintiff at all times material herein has been engaged as a retailer of alcoholic beverages and has been at all times material an Alcoholic Beverage Tax Permittee No. 36312, within the City of Los Angeles, and accordingly became subject to the aforesaid ordinance.
VIII
That in order to maintain its business and to not lose customers to competitors located nearby but not within the City of Los Angeles and thus not liable for the collection of said tax, plaintiff was forced to absorb said tax itself without raising its prices as they existed before the enactment of said ordinance, and plaintiff has thus paid the amount of said tax at its own expense and to its own injury, and no part of said payments have been collected from its customers.
IX
That under the coercion and compulsion of the aforesaid ordinance plaintiff paid the amount of $320.00, under protest, on March 28, 1969, representing five percent of plaintiff’s gross Alcoholic Beverage retail sales for the month of February, 1969, a copy of said protest included *813herein and marked as Exhibit ‘B’ and incorporated herein as though set forth in full.
That plaintiff duly presented a claim for refund of said payment, annexed herein as Exhibit ‘C and made a part hereof as though set forth in full and said claim for refund is deemed rejected inasmuch as more than ninety days have passed without action by the City of Los Angeles, and that plaintiff has thus exhausted all its administrative remedies in compliance with the Los Angeles City Charter sections 360 et seq.
XI
That plaintiff alleged in the aforesaid Protest and Claim for Refund of said payment made under protest, and does herein reallege, that said tax is illegal, unconstitutional and void, for reasons to be set forth hereinbelow.”
The protest of tax payment referred to in the complaint as Exhibit “B” states, “Said payment in its entirety is made involuntarily and under protest, and no payment would be made were it not for the coercion and duress of your office.” (City Clerk)
In my opinion the allegations referred to above are sufficient to create a factual issue as to plaintiff’s status to sue. It was not therefore a volunteer as a matter of law. In Flynn v. City & County of San Francisco, 18 Cal.2d 210 [115 P.2d 3], the court said at pages 216-217: “Since it is well established that a voluntary payment of taxes which have been illegally levied precludes the right of recovery, the next inquiry is whether or not the collections in question were effected by compulsion. The character of the payments—voluntary or involuntary—is to be determined from the terms of the ordinance under which the taxes are imposed, the circumstances attendant upon payment and a consideration of the consequences which might follow upon nonpayment. (Vitale v. City of Los Angeles, 13 Cal.App. (2d) 704, 706 [57 Pac. (2d) 993].) . . . That case [Brumagin v. Tillinghast, supra,] may have stated the rule of the common law at the time of its pronouncement in regard to voluntary payments; but the rule, as thus announced, has been greatly relaxed in more recent decisions in favor of the recovery of money improperly exacted by a defendant.’ (21 R.C.L., p. 147.) “Among the instances of the relaxation of the strictness of the original common law rule is the case of payments constrained by business exigencies, that is payments of illegal charges or exactions under apprehension on the part of the payers of being stopped in their business if the money is not paid. It has been stated that the general rule with regard to duress of this character is that where, by reason of the *814peculiar facts a reasonably prudent man finds that in order to preserve his property or protect his business interests it is necessary to make a payment of money which he does not owe and which in equity and good conscience the receiver should not retain, he may recover it.” (21 R.C.L., pp. 154, 155.) Upon this same subject we find the following statement in 20 California Jurisprudence, page 964: “The underlying principle (that money paid under compulsion may be recovered) is said to be that, by the performance of or threat to perform some unlawful act whereby plaintiff will suffer loss, the defendant has induced the plaintiff, under circumstances sufficient to control the action of a reasonable man, to pay money which he would not otherwise have paid.” . . .’ ” (Italics added.) In Newport Bldg. Corp. v. City of Santa Ana, 210 Cal.App.2d 771 [26 Cal.Rptr. 797], the court said at page 778: “The basic principle of the common law here involved was enunciated in the early case of Brumagin v. Tillinghast, 18 Cal. 265, 271 [79 Am.Dec. 176], 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.’ [fl] Since the decision in the Brumagin case the rigidity of the application of that rule has been somewhat relaxed. In Flynn v. City & County of San Francisco, 18 Cal.2d 210, 216, 217 [115 P.2d 3], it is said, . . The character of the payments—voluntary or involuntary—is to be determined from the terms of the ordinance under which the taxes are imposed, the circumstances attendant upon payment and a consideration of the consequences which might follow upon nonpayment.’ ” Both Flynn and Newport Bldg. Corp. distinguished if not impliedly disapproved of Brumagin v. Tillinghast, 18 Cal. 265, relied upon by the majority. In connection with the class nature of this action see Daar v. Yellow Cab Co., 67 Cal.2d 695 [63 Cal.Rptr. 724, 433 P.2d 732].
I find nothing in Southern Service Co., Ltd. v. County of Los Angeles, 15 Cal.2d 1 [97 P.2d 963], relied upon by the majority, which is either persuasive or compelling of a contrary view.
In the case at bar it may well be that, under the terms of the ordinance attempting to impose this tax, the circumstances attendant upon payment and a consideration of the consequences which might follow nonpayment, the collection in question was effected by compulsion.
I would reverse the order.
A petition for a rehearing was denied November 5, 1970. Allport, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied December 3, 1970. Peters, J., and Mosk, J., were of the opinion that the petition should be granted.