168 Ga. 309 | Ga. | 1929
(After stating the foregoing facts.)
The ruling made in the first headnote does not require elaboration or the citation of authorities to support it.
Petitioner alleges that the ordinances under which the license taxes were collected, and which it is seeking in this proceeding to recover, are unconstitutional and void, because they violate tbe
Were the payments of these taxes by petitioner compulsory? If they were voluntary and not compulsory, petitioner can not recover them. Payments of taxes or other claims, made through ignorance of the law, or where the facts are all known, and there is no misplaced confidence and no artifice, deception, or other fraudulent practice used by the other party, are deemed voluntary, and can not be recovered back, unless made under an urgent and immediate necessity therefor, or to release person or property from detention, or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule. Civil Code (1910), § 4317. This section states the general rule which is of force in this State since the adoption of the Code of 1895. It made its first appearanfce in that Code; and undertakes to state the true general rule applicable to voluntary and compulsory payments of taxes or other claims. Under this general rule payments of taxes can not be recovered, unless made under urgent and immediate necessity, or to release person or property from detention, or to prevent an immediate seizure of person or property. “Except where otherwise provided by statute, a party can not, by direct action or by way of set-off or counter-claim, recover money voluntarily paid with a full knowledge of all the facts, and
To the above general rule there is an exception. Where there are demands and threats of persons clothed with governmental authority to carry them into execution by arrest and prosecution, the case stands on a different footing from demands and threats of private individuals, and money paid because thereof may generally be recovered, 30 Cyc. 1307; Morgan v. Palmer, 2 B. & C. 729, 107 Eng. Rep. (Reprint), 554; Harvey v. Olney, 42 Ill. 336; Chicago v. Waukesha &c. Co., 97 Ill. App. 583; Neumann v. La Crosse, 94 Wis. 103 (68 N. W. 654); First National Bank v. Watkins, 21 Mich. 483; Parcher v. Marathon County, 52 Wis. 388 (9 N. W. 23, 38 Am. R. 745); Ruggles v. Fond du Lac, 53 Wis. 436 (10 N. W. 565); 21 R. C. L. 144, § 168. In such cases the parties do not stand upon an equal footing. Morgan v. Palmer, supra. When money is paid under an illegal demand, colore officii, the payment can never be voluntary. Steele v. Williams, 28 Exch. 625, 20 Eng. L. & Eq. 319. We followed this exception in Dennison Manufacturing Co. v. Wright, 156 Ga. 788 (120 S. E. 120). In that ease the comptroller-general was authorized to collect the license tax, had made demand for payment thereof, and notified the party paying that he would be subject to prosecution for a misdemeanor for failure so to do, and doing business without paying the tax. In this ease the petition does not allege facts which bring the case either within the general rule, or within the exception. The petition does not show that any demand, colore officii, had been made upon petitioner for the payment of these license taxes, or that any civil or criminal proceeding had been sued out against it for failure or refusal to comply with the terms of these ordinances, or that there had been any threat of civil or criminal proceedings made against it for such failure or refusal, or that there
Judgment affirmed.