The plaintiff brought this action seeking to recover taxes paid to the City of Ann Arbor. Prior to 1965 the city leveled a special purpose tax pursuant to the authority given by MCLA § 242.3 (Stat Ann 1958 Rev § 9.593). The statute was repealed effective July 1, 1965. However, in the years 1966, 1967, and 1968 the city continued to levy the tax. In October of 1968 the plaintiff commenced this action. The trial court held that the tax was invalid because without the statutory authorization the tax exceeded the 7.5 mill limitation contained in the city charter. However, the trial court refused to order a refund because the taxes had not been paid under protest in conformity with MCLA § 211.53 (Stat Ann 1971 Cum Supp § 7.97). In the view we take of the case we may assume without deciding that the tax is void and was levied without any authority to do so. Nonetheless, because of the failuré to comply with the payment under protest statute, we affirm.
*610 The plaintiff argues that it is unnecessary to comply with the payment under protest statute when there is no possible legal basis for the tax. Plaintiff argues that such taxes are void, whereas invalid taxes that might by some legal possibility be levied are merely voidable, and that only in the latter case is it necessary to comply with the payment under protest statute.
The distinction urged by the plaintiff has been adopted in some areas of tax law. It has been held that a failure to exhaust administrative remedies does not preclude the recovery of a tax payment when a municipality had no jurisdiction to assess the tax.
Greilick
v.
City of Traverse City
(1925),
However, none of these cases involved a voluntary payment of a tax. It has often been said that a voluntary payment of a tax may not be recovered even if the tax was void.
National Bank of Detroit
v.
City of Detroit
(1935),
The plaintiff argues that the payments were made under a mistake of fact and can therefore be recovered under the holding in
Spoon-Shacket
v.
County of Oakland
(1959),
“The last section above quoted (section 75), 1 to be carefully distinguished (as does the Restatement) from the case before us, is that relating to the recovery of ‘void taxes and assessments.’ Such cases normally involve payments made under mistake of law, which, both for historical (see Lord Ellenborough’s ‘monstrous mistake’ in Bilbie v. Lumley, 2 East 469 [102 Eng Rep 448]) and practical reasons, *612 have received fairly short shrift in the courts. Confusion between such cases, and the case before us, involving one of the simplest of the mistakes of fact (double, or manifold, payment of the same tax) is noted in portions of the briefs before us. Here the person paying (i.e., ‘where a person pays for the second time a tax due from him personally’) is clearly and undisputably entitled to restitution of the amount so paid, whatever the situation may be as to ‘void and illegal taxes.’ The two situations involve different policy considerations, are differently resolved in the cases and treatises, and should not be muddled by us.”
This case is one of the voluntary payment of an invalid tax and not a case of mistake which would make possible a restitutionary action. See also
Hertzog
v.
City of Detroit
(1966),
The plaintiff’s final contention is that if the statute operates to bar his action the statute is unconstitutional because it deprives him of property without due process of law. As long as there is a way open to challenge the validity of a tax there is not a denial of due process,
Miller
v.
State Apple Commission
(1941),
Affirmed; no costs, a public question being involved.
Notes
Restatement Restitution, § 75, p 318.