Raisler v. Mayor of Athens , 66 Ala. 194 ( 1880 )

SOMEBYILLE, J.

The action of assumpsit will properly lie to recover back from a municipal corporation, or county, taxes illegally assessed and collected under an unconstitur tional law.—Wiley v. Parmer, 14 Ala. 627. To support a recovery, however, the plaintiff must not only show the tax in question to be illegal and void, as opposed to being merely irregular, but that it has been paid over by the collector, and received to the use of the municipality or county which is sued; and that it was paid “ under compulsion, or the legal equivalent.” — Cooley on Taxation, 565.

It is a settled principle of law generally, in this State, that money voluntarily paid, through ignorance or mistake of law, with a full knowledge of all the facts, can not be recovered by action in the courts.—Town Council of Cahaba v. Burnett, 34 Ala. 40; 1 Brick. Dig. p. 39, § 301. What is a voluntary payment, in the case of taxes, is not always so clear. But it must be made under circumstances tantamount to legal compulsion — either to release a seizure already made under a tax-warrant, or to prevent one which is immediately apprehended. If a demand is made by the collecting officer, accompanied by a threat to levy for sale in case of refusal, or any equivalent expression of intention, and a payment made under protest, with notice that suit will be instituted to recover back the taxes thus paid, we think this is sufficient to show that the payment was involuntary, as being under compulsion. It is not necessary to await an actual seizure.—Cooley on Taxation, 568-9; Erskine v. Van Arsdale, 15 Wall. 75; Gachet v. McCall, 50 Ala. 307; 2 Dillon Mun. Cor. 751.

But any payment made by the tax-payer before demand made by the collector, or before any threat or step on his part indicating an intention to levy under the warrant, is voluntary, within the meaning the law, and is not under compulsion. — Cooley on Tax. 569, note 3, and cases, cited; Union Bank v. New York, 51 Barb. (N. Y.) 159.

The amount claimed in this case being less than the sum of twenty dollars, the cause was tried by the court below, without the intervention of a jury, as provided by statute in all cases of appeal from justices of the peace to the Circuit Court. — Code of 1876, § 3122. The evidence is conflicting ; and-the circuit judge having had the advantage of hearing the witnesses on oral examination, we are not prepared to say that his judgment, when tested by the above principles, is erroneous. And the payment being held to be voluntary, the alleged unconstitutionality of the law, and questions as to the irregularity of the assessment, become' immaterial. — Cooley on Tax; 565.

Affirmed.