93 P. 255 | Or. | 1908
delivered the opinion of the court.
1. The city charter of 1893 (Laws 1893, p. 564), in force at the time of the levy of January 7, 1904, and January 11, 1905, provided (Section 127) that the city shall constitute an independent road district, and for -road purposes is expressly taken from the jurisdiction and control of the county court. The charter of 1905, in force at the time of the levy of January 6, 1906, by Section 114, which corresponds with Section 127 (page 595) of the charter of 1893, in taking from the county the jurisdiction over the territory within the City of Eugene for road purposes, also expressly takes away the power to levy-taxes for road purposes, and road and poll taxes are by both charters given over to the control of the city, and the city is authorized to levy a' road tax to be collected as other taxes. By Section 3098, B. & C. Comp., which has been in force since 1S93, cities and school districts are required, after making their tax levy, to notify the county clerk thereof, and by Section 3094 the county clerk shall include such city and other tax levies with the county levy in extending the same upon the tax roll, and they shall be collected by the sheriff as other taxes are collected. It has been decided by this court, in Salem v.
2. It is generally conceded that a tax voluntarily paid cannot be recovered back, and it is immaterial in such a case that the tax has been illegally levied. Before a taxpayer can recover it back, the tax must be illegal and the payment must have been made under compulsion: Coolejc Taxation (2 ed.), 805, 809. In People ex rel. v. Brown, 55 N. Y. 180, 187, where the validity of the tax was questioned by the collector, the court say:
“The defendant cannot claim to retain the money as the representative of the taxpayers. There is no relation of principal and agent, or trustee or cestui que trust, existing between
Similar language was used in Berrien County Treasurer v. Bunbury, 45 Mich. 79, 85 (7 N. W. 704, 706):
“He received it in payment of taxes, and as money belonging to the public. Whose money is it? Those who were assessed voluntarity paid it in satisfaction of their tax dues and in the discharge of their duty as citizens. * * Can it be an answer to this suit'brought- for its recovery to say: * * But it could not have been obtained if the taxpayers who freely paid and do not complain had held back for compulsory measures? We think not.” .
See, also, Lovingston et al. v. Board of Trustees, 99 Ill. 564; O'Neal v. Board of School Com'rs, 27 Md. 227. Cooley, Taxation, 705, says the collector “would not be permitted to rely upon technical objections which might be made to the right of the public to the money. If he receives the money to the use of the public, he should account for it; and it is immaterial that those who have paid it might successfully have resisted the collection from them. The principles here stated are applicable, not merely to the ease o-f a defect in the official authority, but to the case, also, in which defects, either technical or substantial, might have been urged to the tax the officer has enforced.”
In Salem v. Marion County, 25 Or. 449 (36 Pac. 163), it is said:
“The principle that an obligation rests upon all persons, natural and artificial, to do justice, so that, if a county obtain money or property of others without authority, the law, independent of any statute, will compel restitution or compensation, is not questioned.”
3. By the terms of the statute above cited, the county is made the tax collector for cities and school districts, and it stands in that relation to them in all proceedings in relation thereto. If the county tax collector collects a void municipal tax and turns it over to the municipality, the remedy of the taxpayer, if he has saved his rights, is against the municipality,
The judgment of the lower court is affirmed. ' Affirmed.