120 Tenn. 347 | Tenn. | 1907
delivered the opinion of the Court.
The hill in this case -was filed for several purposes, hut- nothing now remains except the question whether the sum of $927.27, taxes paid for the year 1904, under a special assessment for the support of the paupers of the county, can be recovered. The question turns upon whether the payment was a voluntary one. The chancellor held adversely to the complainant, and dismissed the hill as to the tax referred to. From this decree the complainant has appealed and assigned errors.
It is not denied by the county that the assessment Avas illegal. It interposes, hoAvever, the two defenses that the payment was voluntary and that the complainant is barred by laches. We deem it necessary to consider only the first.
The matters proper to be stated are as follows:
By Acts 1903, p. 676, c. 258, sec. 40, the county court clerk was required to make out and deliver to the trust*350 ee the tax books on or by the first Monday of October of each and every year. By section 49 of the act taxes were made due and payable on the first Monday of October in each year.
Section 50 of the act reads as follows:
“That all taxes remaining unpaid on the first day of March, of each year, shall immediately be collected by the county trustee, by distress and sale of any personal property liable therefor; and the tax books, in the hands of such trustee, and delinquent lists to be furnished, as herein provided, to deputy trustees or constables, shall have the force and effect of a judgment and distress warrant, and an execution from a court of record authorizing him to make such distraint and sale.”
The tax was paid to J. E. Dyer, deputy trustee of Marion county, on February 23, 1905. No previous demand bad been made by the county. The authorities of the road at Nashville sent to the company’s attorney at Jasper a check for all the taxes due, amounting to $9,581.79. Within this sum was included the illegal tax which is the subject of the present controversy. The attorney for the company, with the check in his possession, went to the trustee’s office, and asked the deputy trustee to sign a receipt showing that the tax was paid under protest. The deputy trustee insisted .on giving a regular tax receipt. The attorney thereupon told him that he would accept this, but that he wished him, the deputy trustee, to sign the re
The receipt referred to is in the following words and figures:
“Received of the Nashville, Chattanooga & St. Louis Ry. the sum of ($9,581.79) nine thousand five hundred and eighty-one and -¡wo dollars in full settlement of all taxes due Marion county, Tennessee, for the year 1901; the said amount of nine thousand five hundred and eighty-one and -¡wo ($9,581.79) dollars being paid to me as trustee, under protest, by the Nashville, Chattanooga & St. Louis Railway, as it claims that it only owes the sum of six thousand and forty and -nM>- ($6,010.74) dollars as taxes for said year to said county. The payment of the entire sum demanded by the county of Marion in no way is to prejudice the rights of the Nashville, Chattanooga & St. Louis Railway in any action it may desire to institute to recover back the amount it claims to be illegally paid.
“[Signed] R. J. Brown,
“Trustee for Marion Co., “Per J. E. Dyer, Deputy.
“February 23, 1905.”
Before we can hold a payment of taxes involuntary, it must appear that the officer had in his hands process authorizing the seizure of the person or property of the taxpayer, that such seizure of one or the other was imminent, and that there were no other legal means of protecting the person or property than by payment. Under such circumstances payment under protest will save the rights of the taxpayer to recover if the tax should be illegal. Mere protest is not sufficient. Mere unwillingness to pay is not sufficient.
We are referred to several cases in this State for the proposition that, as soon as the tax books go into the hands of a trustee of a county, they constitute such process as would justify a payment under protest, which would save the right of the taxpayer to sue for the recovery of any amount paid which should turn out to be illegal. All of the cases referred to are mentioned
“It is deemed necessary to dispose of tAvo preliminary questions. The first of these is that the money was paid Aroiuntarily, and cannot, therefore, be recovered. We think this point is covered by the case of Bright v. Halloman, 7 Lea, 309, 312. In that case it Avas held that the tax book Avas process equivalent to an execution in the hands of the officer, and payment under protest entitled the party to sue for so much as Avas deemed illegal; that this was true, although the taxes involved Avere county taxes, and no special provision was made for the payment of this class of taxes under protest, under the act of 1873, carried into Shannon’s Code as section 1059. See, also, Railroad Co. v. Williams, 101 Tenn., 146, 148, 46 S. W., 448, and Bank v. Memphis, 107 Tenn., 66, 68, 73, 74, 64 S. W., 13. It Avas also held in a prior case (Lea v. City of Memphis, 9 Baxt., 103), that, although taxes were voluntarily paid, yet if they Avere illegal the city might lawfully agree to refund them, and that her paper obligations therefor Avould be good. On the same principle, Ave are of opinion that the city, when about to distrain for taxes, may make an agreement Avith the party paying that such payment is under protest; and it AA'Ould do right to carry out the agreement in any subsequent litigation instituted concerning such payment.”
The point decided in the case quoted from is that a city, when about to distrain for taxes, may make
“It is insisted the plaintiff ought not to have recovered because his payment was voluntary. We do not*355 assent to this contention. The tax book was process equivalent to an execution in the hands of the officer, and payment under protest entitled the party to sue for so much as was deemed illegal.”
It does not appear from this excerpt what the contents of the act were under which the book was made up; but it is clear that it was a book equivalent to an execution, and it is equally certain that the book in the hands of the county trustee of Marion county, when the tax in question was paid, was not equivalent to an execution. This authority, therefore, does not apply.
The following cases from other jurisdictions fully support the conclusion we have reached in the present case: Railroad Company v. Commissioners, 98 U. S., 541, 25 L. Ed., 196; Little v. Bowers, 134 U. S., 554, 10 Sup. Ct., 620, 33 L. Ed., 1016; Morris v. New Haven, 78 Conn., 673, 63 Atl., 123; Union Insurance Company v. Allegheny, 101 Pa., 250, 255, et seq.; Peebles v. Pittsburg, 101 Pa., 304, 308-310, 47 Am. Rep., 714; Hoke v. Atlanta, 107 Ga., 420, 33 S. E., 412. And see, also, Canfield, etc., Lumber Co. v. Township of Manistee, 100 Mich., 466, 59 N. W., 164; Oakland Cemetery Association v. Ramsey County, 98 Minn., 406, 108 N. W., 857, 109 N. W., 237, 116 Am. St. Rep., 377.
The county assigns error upon the action of the chancellor in charging it with two-fifths of the costs of the cause.
While this objection comes with very poor grace from the county, since it admits having in its hands, or having received, nearly $1,000 of illegal taxes, which it
It results that the decree, of the chancellor in favor of the county must be affirmed, and his decree against the county must be reversed.
There was an application in the court below for the allowance of attorney’s fees against the county, under the statute applicable to this subject, by the attorneys representing the county. For the assessment of these fees the cause will be remanded to the chancery court of Marion county.
The complainant will pay the costs of this court and of the court below.