after making the foregoing statement, delivered the opinion of the court.
On writ of error to a judgment, sustaining defendant’s demurrer'to the complaint for the recovery of taxes paid under protest, the Court of Appeals of Texas considered all the assignments of error. It held that the permit of 1901, to do business for ten years, was not a contract and that therefore the State during that period might demand an increased or additional franchise tax. It ruled that foreign corporations might be altogether excluded, or required to pay a discriminatory tax as the condition of the right to do business in Texas. It further held that even if there had been merit in. plaintiff’s contention, it was not entitled to recover the taxes for 1905 and 1906, because they had been voluntarily paid.
1. If the record affords a basis for sustaining the last proposition, this court cannot consider whether the act violates the Fourteenth Amendment, or the commerce and contract clauses of the Constitution. For, as repeatedly ruled, where a state court has decided against the plaintiff in error on a matter of general law broad enough to sustain the judgment, this court will not consider the Federal questions, even though they may have been actually considered and determined adversely to his contention.
Hale
v.
Akers,
It is, however, equally well settled that if the Federal question is properly presented and necessarily controls the determination of the case, the appellate jurisdiction of this court is not defeated because the decision is put upon some matter of local. law.
West Chicago R. R. Co.
v.
Chicago,
2. Neither a statute imposing a tax, nor the execution thereunder, nor a mere demand for payment, is treated as duress. It does not necessarily follow that there will be a levy on goods. Or, if there is, the citizen, to avoid the consequences of the levy, may pay the money, regain the use of his property and maintain a suit for the recovery of what has been exacted from him. The legal remedy redresses the -wrong. But he has the same right to sue if he pays under compulsion of a statute, whose self-executing provisions amount to duress. An act which declares that where the franchise tax is not paid by a given date a penalty of twenty-five per cent shall be incurred, the license of the company shall be cancelled, and the right to sue shall be lost, operates much more as duress, than a levy on a limited amount of property. Payment to avoid such consequences is not voluntary but compulsory, and may be recovered back.
Swift Co.
v.
United States,
3'. If, therefore, the plaintiff had been included in the class to which this statute applied, and, under the duress of its automatically enforced provisions, had paid the tax to avoid the disruption of its business, it could have maintained an action to recover the amount thus exacted. In that suit it would have been entitled to a decision on the question as to whether the statute was constitutional, and to a review of the judgment if it had been adverse to the company’s contention. But the company did not, in any sense, come within the purview of the act. The plaintiff alleged that it was engaged only in interstate commerce. If so, the statute did not require from it the payment of the tax. For the Supreme Court of Texas in
Allen
v.
Tyson-Jones Buggy Co.,
To permit those not affected by a statute to pay the Sum thereby assessed, and then sue for its recovery on the ground that the act was void, would reverse the rule that “one who would strike down a State statute as violative of the Federal Constitution must bring himself by proper averments and showing within the class as to whom the act thus attacked is unconstitutional. He must show that the alleged unconstitutional feature of the law injures him, and so operates as to deprive him of rights protected by the Federal Constitution.”
Southern Railway Co.
v.
King,
What we have said shows that the question as to voluntary payment fairly arose out of the record, and was not arbitrarily injected into the case.
Leathe
v.
Thomas,
Affirmed.