Notes

to raise the question whether it has been legally organized or not. Railroad Co. v. Leavell, 16 B. Mon. 363; Hughes v. Bank, 5 Litt. 46; Wight v. Railroad Co., 16 B. Mon. 7 ; Gill's Adm'x v. Mining Co., 7 Bush, 739. Appellees, as citizens of the towns, not only acquiesced in their organization as fifth-class cities, but, by taking out licenses from them, and acting under these licenses, they recognized the existence of the city government, and cannot now raise the question whether they had been legally organized or not. The last legislature passed an act transferring these cities to the fifth class (see Acts 1898, p. 81), and so all question of irregularity has now been removed. The government of a sixthclass town is totally different from that of a fifth-class city. It is conducted by different officers. One has a mayor and city council; the other has only a board of five trustees. The cities in question had no government as towns of the sixth class when these licenses were taken out, and, if the de facto government as a city of the fifth class was void, there was no government at all. Appellees did not receive They received a license.

a license from a sixth-class town. from a de facto fifth-class city, and the regularity of this fifthclass city government not having been questioned by the state cannot be questioned by them. The judgments below are therefore reversed, with directions to the court below to grant the appellants a new trial in each of these cases, and for further proceedings in conformity to this opinion.

NOTES.

Recovery Back of Taxes, etc.,-Voluntary Payment.-It has been held that an invalid tax voluntarily paid, though its invalidity was unknown at the time the payment was made, cannot be recovered unless its invalidity arose from facts known to the payer. Goddard

v. Seymour, 30 Conn. 394; Kraft v. Keokuk, 14 Iowa, 86; Espy v. Fort Madison, 14 Iowa, 226; Kan. Pac. R. Co. v. Wyandotte Co., 16 Kan. 587.

A number of cases hold that the payment of a tax illegally levied is a voluntary payment, and cannot be recovered. Younger v.

Notes

Board of Supervisors (Cal.), 9 Pac. Rep. 103; Welton v. Merrick Co. (Neb.), 20 N. W. Rep. 111; Balfour v. City of Portland, 28 Fed. Rep. 738; Sonoma Tax Case, 13 Fed. Rep. 789; and note Dunnell Mf'g Co. v. Newell, (R. I.), 2 Atl. Rep. 766. The contrary was held in Newson v. Board of Commissioners (Ind.), 3 N. E. Rep. 163 ; Thomas v. City of Burlington (Iowa), 28 N. W. Rep. 480; Winzer v. City of Burlington (Iowa), 27 N. W. Rep. 241; Breucher v. Village of Port Chester, 101 N. Y. 240; Jex v. City of New York (N. Y.) 9 N. E. Rep. 38; Schultze v. City of New York, 8 N. E. Rep. 528.

Same-Involuntary Payment.-Where the tax is paid to an officer or person having formal authority to collect it, such payment is involuntary; and if the tax is illegal, the money paid may be recovered. Tuttle v. Everett, 51 Miss. 27, 24 Am. Rep. 622. And it has been said that, "Where an illegal tax is paid, under protest, to one who has authority to enforce its collection, it is an involuntary payment, and may be recovered back if tax is illegal. Hubbard v. Brainard, 35 Conn. 563; Bradford v. Chicago, 25 Ill. 411; Trumball v. Campbell, 8 Ill. 502; Lauman v. Des Moines, 29 Iowa, 310; Joyner v. School Dist., 57 Mass. (3 Cush.) 567; Sandwich Glass Co. v. Boston, 45 Mass. (4 Metc.) 181; First National Bank v. Watkins, 21 Mich. 483; Grim v. School Dist., 57 Pa. St. 434; Hendy v. Soule, Deady (U. S.-D. C.), 400."

As to when money voluntarily paid may be recovered back, see Town of Ligonier v. Ackerman, 15 Am. Rep. 323, 46 Ind. 552; also note to Black v. Ward, 15 Am. Rep. 171; Chandler v. Sanger, 19 Am. Rep. 367; Spaids v. Barrett, 11 Am. Rep. 10.

Same-Payment under Duress. It is said by the court of appeals of Kentucky, in the case of Torbell v. City of Louisville, 4 So. Rep. 345, that one of the parties to an illegal tax, under the belief that it is valid, and in response to a demand and threat of compulsory payment, may recover it back upon discovering his mistake. But it is held by the supreme court of California, in Maxwell v. San Louis Obispo Co., 71 Cal. 466, that, when it appears there was no liability to anything beyond civil and criminal prosecution in case of refusal to pay certain license tax, and that in such prosecutions the invalidity of the law which authorized the collection of the taxes would have been a perfect defence, a party making payment is not under such duress or compulsion, that he can recover back money so paid, in an action brought for that purpose. It is well settled that the mere apprehension of legal proceedings is not sufficient to make payment compulsory. There must exist immediate authority to enforce payment or to institute proceedings. Town of Ligonier z. Ackerman, 46 Md. 552.

Notes

It seems to be well settled that a payment of taxes is not compulsory merely because it is made under a threat, express or implied, that the legal remedies will be resorted to, because mere threats are not coercion. De Fremery v. Austin, 53 Cal. 380; Williams v. Corcoran, 46 Cal. 556; Detroit v. Martin, 34 Mich. 173; Jackson v. Newman, 59 Miss. 385; Vicksburg v. Butler, 56 Miss. 72; Taylor v. Board of Health, 31 Pa. St. 73; Lea v. Memphis, 9 Baxt. (Tenn.) 103; Sonoma Co. v. Tax Case, 13 Fed. Rep. 92; Taylor v. Phila. Bd. of H., 31 Pa. St. 73.

Same-Payment under Protest.—It is said that, if taxes which are illegally assessed be paid under protest, may be recovered back (N. C. R. Co. v. Almanace, 77 N. C. 4; Welker v. Potter, 18 Ohio St. 85; Stephan v. Daniels, 27 Ohio St. 527; Marsh v. Supervisors, 42 Wis. 163; Hercey v. Supervisors, 37 Wis 75. See Western Union Tel. Co. v. Mayer, 28 Ohio St. 521; Kady v. Perrin, 14 S. C. 1), because payment under protest to an officer is not a voluntary payment. Ruggles v. Fond du Lac, 53 Wis. 436.

It is said by the supreme court of Maryland that, in Babcock v. Township of Beaver Creek, 31 N. W. Rep. 423, a non-resident partnership had property in another township, but their place of business was in the locality where they resided; the property was not assessed in their name but in the name of one of the partners, the collector demanded of them payment of the tax, and they paid the same under protest, the court held that the payment was involuntary and that they had the right to sue to recover it back.

A tax may be paid under protest and yet be voluntarily paid in which case the money paid cannot be recovered, because an illegal tax voluntarily paid under protest cannot be recovered back except in those cases where the person to whom it was paid had authority to enforce its immediate payment. See Bucknall v. Story, 46 Cal. 589, 13 Am. Rep. 220; Claycomb v. McCoy, 48 Ill. 110; Lima v. Jenks, 20 Ind. 301; Campbell v. New Orleans, 12 La. An. 34; Stickney v. Bangor, 30 Me. 404; Morris v. Mayor of Baltimore, 5 Gill (Md.), 244; Lee v. Templeton, 72 Mass. (6 Gray) 679; State v. Powell, 44 Mo. 436; Christy v. St. Louis, 20 Mo. 143; Sandford v. New York, 33 Barb. (N. Y.) 147; Phelps v. City of New York (N. Y.), 19 N. E. Rep. 408; Second Un. Soc. v. Providence, 6 R. I. 235.

In the case of Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512, where a tax was assessed on land under a statute which was afterwards decided to be unconstitutional, and prior to such decision the owner had paid the tax under protest to prevent a threatened sale, the court held that the payment was voluntary and that the money could not be recovered back. The reason for this would seem to be that a sale of land for taxes, laid under an unconstitutional law,

Notes

does not constitute a cloud upon the title; and therefore payment of such taxes to prevent a sale is voluntary, though made under protest, and cannot be recovered. In Baker v. Big Rapids (Mich.), 31 N. W. Rep. 810, it was said that, where one pays his city taxes to the treasurer in December, stating at the time that he does so under protest, it appearing that the treasurer was by law authorized to receive in December such taxes as were voluntarily paid, but was not authorized to compel payment until the 1st of January, that the payment thus made must be considered as made voluntarily, notwithstanding the protest, and that the taxpayer cannot recover back the amount so paid upon the ground that the taxes were illegally assessed against him.

It is said by the supreme court of California, in the case of Younger v. Board of Supervisors, 68 Cal. 241, that where taxes based upon an illegal assessment are paid in order to prevent the property assessed from being returned delinquent, such payment is a voluntary payment, although made under protest, and no action lies to recover back the amount thereof.

The supreme court of Wisconsin say, in Rutledge v. Price County, 60 Wis. 35, that taxes and interest thereon paid under protest by a party in a state to foreclose tax certificates for illegal taxes, cannot be recovered when the complaint does not show in the plaintiff any title to the property which was subject to the taxation.

In the case of Sowles v. Soule, 59 Vt. 131, it is said that, where the defendant, a tax-collector (before the passage of act No. 11, Laws of 1882), attempted to restrain plaintiff's bank stock for the payment of taxes and advertised it for sale, and plaintiff before sale and with full knowledge of all the facts of the sale under protest, such payment was voluntary.

Same-Business Tax.-Where the right to recover, under the statute, illegal taxes paid under protest, such right to recovery applies to a business tax collected under a void ordinance. Caldwell 7. City of Lincoln, 19 Neb. 569.

Same-Payment under Mistake.-An illegal tax voluntarily paid by mistake of both law and fact may be recovered. City of Louisville v. Anderson, 89 Ky. 334.

The supreme court of Indiana say, in the case of City of Indianapolis v. Patterson, 112 Ind. 344, that, A married woman may recover city taxes paid by her on land not subject thereto because not legally annexed to the city, under a mistake of fact on her part in supposing that the land assessed had been included, in a plat of other land made by herself and husband, and properly annexed to the city. And she is not estopped by the fact that a street was improved, but not at the expense of the city, in front of some of her

Hoke v. City of Atlanta

lots, without her knowledge; she having before that time conveyed them to her children, and that the six years' statute of limitations, which applies to an action to recover taxes paid under mistake of fact, begins to run from each payment; and a married woman, whose disabilities were removed by the act of 1881, can only recover, in an action commenced more than two years after that date, for taxes so paid by her within the six years immediately preceding the institution of the action."

Same Mistake of Legal Right.-Mere mistake of legal right is not sufficient ground for the recovery back of an illegal tax, license or fine. Elston v. Chicago, 40 Ill. 514; Robinson v. Charleston Council, 2 Rich. Law (S. Car.) 317; Savannah v. Feeley, 66 Ga. 31 ; Welch v. Marion, 48 Ala. 291; Bailey v. Paulina, 69 Iowa 463; Smith V. Hutchinson, 8 Rich. Law (S. Car.) 260; Churchman v. Indianapolis, 110 Ind. 259; Emery v. Lowell, 127 Mass. 138, 2 Dill. Mun. Corp. (4th Ed.) § 942 et seq.

It has been held that there could be no recovery back where the ordinances under which the tax was assessed were based on an unconstitutional statute. Baltimore v. Lefferman, 4 Gill (Md.) 425. See also Gordon v. Baltimore, 5 Gill (Md.) 231; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512.

HOKE et al.

V.

CITY OF ATLANTA.

(Supreme Court of Georgia, April 25, 1899.)

Illegal Assessments-Voluntary Payments-Protest-Recovery.* A voluntary payment of an illegal assessment by a municipal corporation upon a property owner for a street improvement cannot, though made under protest, be recovered.

Same-Same-Duress.

When such an assessment is paid merely to prevent a levy upon realty, it cannot be said that the payment was made under duress, and was therefore involuntary, the more especially when a complete and easily available legal remedy to prevent the levy was open to the landowner.

(Syllabus by the Court.)

*See Town of Providence v. Shackelford et al. (Ky. 1899), ante and notes.