| Ark. | Feb 10, 1913
(after stating the facts). The taxes in question were assessed and collected under the' Act of 1911 referred to above for the purpose of paying the expenses incurred in forming the district. It is claimed by counsel for appellee that the assessment and collection for this purpose was valid. On the other hand, counsel for appellant contend that his land was taken out of the district by the terms of the special act of 1911, and that the assessment and collection of the taxes in question were illegal and void. We deem it unnecessary to go into any question arising out of the improper levy or collection of taxes assessed upon appellant’s land, for we hold that the payment was voluntary and with full knowledge of all the facts. In some of the States the right to recover illegal taxes paid under protest is given by statute. In. this State, however, there is no statute regulating the matter, and if any recovery is had, it must be under the rules of the common law. The common law rule governing cases of this kind is laid down in th'e following cases: Lamborn v. County Commissioners, 97 U.S. 181" date_filed="1878-02-18" court="SCOTUS" case_name="Lamborn v. County Commissioners">97 U. S. 181; Railroad Company v. Commissioners, 98 U.S. 541" date_filed="1879-02-18" court="SCOTUS" case_name="Railroad Co. v. Commissioners">98 U. S. 541. These cases lay down the following rule:
“Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and can not be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.”
This rule was recognized and quoted with approval by this court in the following cases: Helena v. Dwyer, 65 Ark. 155" date_filed="1898-03-19" court="Ark." case_name="Helena v. Dwyer">65 Ark. 155; Town of Magnolia v. Shannon, 46 Ark. 358" date_filed="1885-11-15" court="Ark." case_name="Town of Magnolia v. Sharman & Co.">46 Ark. 358. There are some expressions in some of our cases, which indicate that a broader rule has been adopted, but when the facts of the case are examined and considered, it will be seen that the rule, as above announced, has been strictly adhered to. To illustrate, in the case of Drew County v. Bennett, 43 Ark. 364" date_filed="1884-11-15" court="Ark." case_name="Drew County v. Bennett">43 Ark. 364, the county court of Drew County, exacted from Bennett four hundred and fifty dollars for liquor license, when only four hundred dollars was the regular tax. Bennett paid the tax under protest, and was allowed to recover the excess as an illegal exaction. It will be noted, however, that Bennett was compelled to pay the tax before he could engage in the business of selling liquor and on that account he paid it under compulsion or duress within the meaning of the law. The facts alleged in the complaint in the instant case, however, do not in law constitute duress or compulsion. Appellant was in no immediate danger of being disturbed in tbe possession of his property, and be would not have jeopardized it by not paying tbe taxes at tbe time be did pay them. ■ No irreparable injury could bave resulted from bis not paying them át tbe time. If be bad refused payment to the collector, tbe latter bad no authority to levy upon and seize bis land to enforce payment. Tbe statute requires suit to be brought by tbe board of directors of tbe levee district to collect tbe taxes. In tbe event of such suit, tbe plaintiff would bave bis day in. court and tbe opportunity to plead and to offer proof in support of bis claim that tbe taxes were illegal. He could bave interposed tbe same defense to that action which be now asserts as tbe basis for bis recovery in tbe present action. To bold otherwise would put it in tbe power of tbe party paying under protest to choose bis own time and opportunity for commencing suit. To permit a person to ignore tbe remedies permitted under tbe statute against tbe alleged illegal taxes upon real estate and pay tbem with knowledge of all tbe facts, and then allow him to recover tbem back by suit would be inconsistent with our tax laws. We are aware that there is a sharp and irreconcilable conflict in tbe authorities on this question, but we believe that our decision is in accord with tbe weight of authority on tbe subject. Many additional authorities could be cited in support of tbe decision, and many might be cited against it, but they all follow tbe same general line of reasoning, and no useful purpose could be served by citing tbem at length. We deem it sufficient to say that a full and extensive note giving tbe authorities on both sides of tbe question and to some extent reviewing tbem may be found in tbe following cases: Town of Phoebus v. Manhattan Social Club (Va.), 8 Am. & Eng. Ann. Cas. 667; Monagan v. Lewis, 10 Am. & Eng. Ann. Cas. 1048; Cooley on Taxation, (3 ed.), Vol. 2, 1502, and cases cited.
Tbe fact that appellant executed a mortgage on his land, and that tbe mortgage would fall due if be failed to pay tbe taxes regularly assessed thereon, could not bave the effect of making the payment under compulsion, because, as already stated, he could have made defenses to the suit brought against him to collect the taxes, and if they had been adjudged illegally, he would not have to pay them.
It follows that the judgment will be affirmed.