106 So. 277 | Miss. | 1925
The appellant was plaintiff below, and filed suit to recover the taxes paid under an assessment made under a special act of the legislature of 1916 authorizing the board of supervisors of Pearl River county to have a new assessment of lands made. Chapter 475, Laws of 1916. It alleged that on December 28, 1916, it paid the tax collector of said county eighty dollars and four cents, after deducting a commission for collecting, more than it paid on its lawful taxes for the year 1915; that it paid three hundred dollars and sixteen cents, after deducting commissions for collecting, more than it paid on its *139 lawful taxes for the year 1915 to said county through its tax collector. Copies of the tax receipts for 1915 and 1916 were attached as exhibits to the declaration. Plaintiff then alleged that, although the assessment for the year 1916 was made under the guise and authority of law, yet the assessment was illegal and of no legal effect, being in violation of section 112 of the Constitution of Mississippi, and also in contravention of the Fourteenth Amendment of the Constitution of the United States.
It is then alleged: That the tax assessor of Pearl River county, under color of said legislative act (chapter 475, Laws of 1916), assessed said lands in the year 1916 and certified the same to the auditor of public accounts. That under the assessment the tax collector proceeded to demand of the plaintiff payment of the said sums aforementioned, and appellant did pay the same, and that the tax collector paid the same into the treasury of the county and of the state of Mississippi. That the sheriff had power under the law to seize the property of the plaintiff and to sell it in payment of the taxes. That said taxes were not due by the plaintiff to either the county or state, and that said assessment was illegally exacted, and said taxes were paid under compulsion and duress of law.
Plaintiff then alleged that he presented a claim for refund of the said taxes to the auditor of public accounts of the state of Mississippi under section 4346, Code of 1906 (Hemingway's Code, section 6980), and that the auditor and the attorney-general found the same to be due and owing, and issued a warrant on the state treasury for the state's part, and certified the allowance and the correctness of the account to the board of supervisors for allowance, which the board of supervisors refused to do, wherefore plaintiff demanded judgment against the county for said sum.
The defendant, the county, pleaded the general issue and also a special plea in the following words: *140
"Comes now the defendant, by Parker Shivers, its attorneys, and defends, etc., and for its first special plea in this behalf says that the plaintiff ought not to recover of and from this defendant in this suit, for the reason that the money claimed to be due and owing from this defendant was taxes assessed to plaintiff, which was paid by it under the following circumstances:
"That a special assessment of the lands in Pearl River County, Miss., including the plaintiff's land, was made in the year 1916, under a special law passed by the Mississippi legislature at its 1916 session. Said assessment was made and returned to the board of supervisors of Pearl River County at the usual and regular time for the filing of such assessment, and was by said board of supervisors duly equalized and approved; that at the time of the equalization of said assessment the plaintiff by its agents appeared before said board for changes in plaintiff's assessment, agreeing with said board to the assessment of plaintiff's said land on the aforesaid assessment roll as approved; that thereafter, to-wit, on the ____ day of ____, the plaintiff paid its taxes on its said lands, as assessed by the tax collector of Pearl River County, Miss., without any request, demand, or threat from said tax collector, the said taxes being voluntarily paid by plaintiff without any protest or objection on plaintiff's part, and without compulsion on the part of said tax collector — all of which the defendant is ready to verify. Therefore it prays judgment if plaintiff ought to have and recover of it the sum claimed by plaintiff for any part thereof as set out in its declaration."
The plaintiff demurred to the special plea, and the demurrer was overruled by the court, and plaintiff declined to plead further, and the suit was dismissed.
There was an agreement filed that the claim for a refund had been filed with the auditor and attorney-general as alleged, and that they had refunded the state's part of the taxes and had certified the county's part to the county for allowance under the above statute. It was *141 further agreed that the plaintiff paid the amount of taxes above stated in excess of the amount paid in 1915, and it is agreed that the board of supervisors rejected the county's part. Certain other suits are to abide the result of this suit.
By an examination of the special plea above set out, it will be seen that the payment was made without protest, and that the assessment was agreed to by the appellant, and that the amount was paid without any request, demand, or threat by the tax collector, and that the payment was voluntarily made.
In the case of Pearl River County v. Lacey Lumber Co.,
The appellant insists in this appeal that the above case is not authority in the present case because all that was necessary to decide in that case was that the protest was sufficient to authorize a recovery. The question was considered by the court and was fully briefed by the parties in that suit, and, if no protest was necessary at all, the court would not have held that a special protest must be made where the defect was not apparent on the face of the record. While it may be said that that part of the decision was not necessary to a disposition of the case, still it was directly presented and was considered, and the philosophy of the decision predicated upon the fact that a protest was necessary.
The general rule is that a payment made that is voluntary cannot be recovered by suit. Wesson v. Collins,
Generally the authorities hold that a payment voluntarily made cannot be recovered, and that some coercive measure or proceeding, such as seizure or threat of imprisonment by an officer armed with authority to seize or arrest, is necessary. See authorities above cited. Our court, however, is more liberal than most of the courts, and holds that payment under protest may be recovered if the taxes were illegal, or that any coercive steps taken by authority having the power to seize or levy is sufficient to make it involuntary. Tuttle v. Everett,
We are of the opinion that section 4346, Code of 1906 (Hemingway's Code, section 6980), does not dispense with the necessity of protesting in case the roll is illegal or void for any reason, but that it is a statute intending to give the taxpayer a right of action for the recovery of the thing illegally taken from him under duress or over his protest — a right he would not have unless conferred by some statute.
In considering the question, we must consider the general laws and policy of the state in matters of taxation. Our court has held, where property is actually assessed by the assessor or brought before the taxing authorities and assessed, that it cannot be back assessed by the revenue *143
agent, although the assessment was void. Adams v. Luce,
We must also take into consideration the fact that the board of supervisors must make the county levy on the basis of the property assessed under section 3708, Hemingway's Code (section 335, Code of 1906). It was held by the court in Gamble v.Witty,
In the case before us, the county made the levy on the basis of the void assessment which the declaration shows was at a higher valuation than the 1915 roll. If the appellant without protest can recover the excess paid, then every other taxpayer of the county may do likewise, and still the board would be without power to make another levy of the taxes to meet the necessary expenses. While the mere fact that the money has been collected and distributed to the various county purposes by the county does not prevent the taxpayer who has reserved his right to protest, from recovering, still it is permissible to consider the results that would flow from the statute by a particular construction before adopting that construction. If the taxpayer voluntarily pays the tax, he has no one to blame but himself. If attention has been called to the fact that the roll was void, the county authorities perhaps could have remedied the situation. At least the county authorities could probably have gotten legislative authorities to do whatever was necessary to further the county's interest in making an appropriate levy. To hold that a payment voluntarily made could be recovered would be very disturbing, and would run contrary to the general authorities of the country. *144
We therefore think that the best and the proper construction is to hold that there can be no recovery where there was a voluntary payment. In most of the authorities cited by the appellant from other states there was either a protest actually made or there were such proceedings taken by the authorities as prevented it from being a voluntary payment. In some jurisdictions the statute expressly provides that a protest is not necessary. See Board ofRevenue v. Birmingham Waterworks Co.,
The judgment of the lower court will therefore be affirmed.
Affirmed.