Miner v. Clifton Twp

• Decision Date: 01 October 1912
• Citation: 137 N.W. 585,30 S.D. 127
• Parties: CHARLES MINER et al., Plaintiffs and appellants, v. CLIFTON TOWNSHIP et al., Defendants and respondents.
• Court: South Dakota Supreme Court

30 S.D. 127, 137 N.W. 585 (1912)

CHARLES MINER et al., Plaintiffs and appellants v CLIFTON TOWNSHIP et al.,

Defendants and respondents

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

Affirmed

Null & Royhl

Attorneys for Appellants.

C. A. Kelley, James Byrnes, O. S. Hagen

Attorneys for Respondents.

Opinion filed October 1, 1912

WHITING, J.

This is an appeal by the plaintiffs from a judgment in favor of the defendants. The action was brought to recover from the defendant township certain moneys which had been paid by plaintiff as taxes, and injunctional relief was also sought; it being asked that defendant corporation be restrained from paying defendant Bloodgood an amount claimed by him as the contract price for certain roadwork which he had done. There being no question raised upon the pleadings, or upon the sufficiency of the evidence to support the findings of the court, the sole question before us is the sufficiency of the findings to support the conclusions of law and judgment of the trial court.

Under the statutes of this state, the electors of a township, at the annual town meeting, vote the amount of taxes to be raised for the ensuing year, fixing the amount to be raised for each of several purposes mentioned in such statutes. After such vote the town board makes the levies thus authorized, and their clerk certifies the levies (specifying the purposes thereof and amount levied for each purpose) to the county auditor, excepting that he certifies the levy for road purposes to the several road overseers. The taxes thus certified to the auditor go upon regular tax list, and are collected by the county treasurer. Those certified to the road overseers are collected either in money or in work.

The trial court found that at the town meeting "$800 for all town levy was agreed upon," but no other levy authorized; that the township clerk certified to the county auditor a levy of $100 for general purposes and $800 for road and bridges; that such clerk certified to the several road overseers a levy of $800 for road purposes; that the plaintiffs; either in work or money, paid to the road overseers all of the said road tax; that the plaintiffs paid the first installment of the taxes certified to the county auditor, paying same in ignorance of the facts relating to the purported levies; that plaintiffs afterwards paid the second installment, paying same with knowledge of all the facts concerning the said levy and return thereof; that in paying such second installment the payments were all voluntary, with the exception that one of the plaintiffs made an oral protest at time of payment. There is no finding as to the grounds upon which such protest was made.

It seems to us clear that, under the overwhelming weight of authority, a mere verbal protest, with no reasons stated therefor, is unavailing; also that one who knows the facts rendering a tax invalid must not only protest, but must wait until active steps to enforce payment are taken before he pays the tax. Any other payment is voluntary, except that courts universally hold a payment under duress, as well as under protest, is not voluntary. Lamborn v. Dickinson Co., 97 U.S. 181, 24 L.Ed. 926; Town of Phoebus v. Manhattan Social Club, 105 Va. 144, 52 S.E. 839, 8 Ann Cas. 667; Johnson v. Crook Co., 53 Or. 329, 100 Pac. 294, 133 Am.St.Rep. 834, and notes; Monaghan v. Lewis, 5 Pennewill (Del.) 218, 59 Atl. 948, 10 Ann.Cas. 1048, and notes. See generally notes 94 Am.St.Rep. 427-439. There are no facts found showing payment under duress by any plaintiff.

The above disposes of any claim for the return of the second installment of taxes paid. It is claimed, however, that as plaintiffs were in ignorance of the facts at the time of paying the first installment to the county auditor, they have a right to recover, even though the payments were voluntary. It would seem that any such rule, unless safe guarded by statutes, would be very dangerous and clearly against public policy. There may be extreme cases justifying such a holding, as was the case in Wooley v. Staley, 39 Ohio St. 354, where a party paid a large sum under representation by the county auditor that it was collectible, when in fact no such sum had been or could he levied. We are not called upon to pass on the question of whether this money could have been recovered if the facts invalidating the tax did not appear of record. The public records in the township clerk's office showed the invalidity of the attempted levies, and public policy requires that the taxpayer be presumed to know the facts shown by such public records, and be bound by such knowledge. Any other rule would work disastrous results, especially where there may have been large levies for public improvements, and the improvements have been made and the funds collected and paid out therefor, before any claim made for return of taxes paid. It must also be remembered that this tax is not one that could not have been legally levied; but it was a tax which the town board were authorized under certain circumstances to levy. If this were a tax for which there was in law no authorization, a different rule might apply, though even then, under the great weight of authority, there could be no recovery where payment was voluntary. See Desty on Taxation, 791; Cooley on Taxation (2nd. Ed.) 805; Tatum v. Town of Trenton, 85 Ga. 468, 11 S. E. 705; Welton. v. Merrick Co., 16 Neb. 83, 20 N.W. 11; Taylor v. Board, 31 Pa. 73, 72 Am.Dec. 724; Tupelo v. Beard, 56 Miss. 533. We quote with approval the following from Gould v. Board, etc., 76 Minn. 381, 79 N.W. 530.

"But the chief ground upon which a reargument is asked is that the court did not give due weight to the fact that, according to the complaint, the plaintiff paid the tax in ignorance that any part of it was illegal. It should be kept in mind that the rules which apply to actions to recover back money paid by one person to another do not apply, to their full extent, to actions to recover back from a county, town, or other municipality money in payment of taxes illegally or irregularly assessed or levied. There are certain considerations of public policy which must necessarily be taken into consideration. If a party could recover back from the public whenever there was some illegal or irregular action on the part of public officers in the assessment or levy of the tax, merely because he was ignorant of such illegality or irregularity at the time he paid the tax, the public finances would be thrown into chaos, and frequently municipalities would be reduced to utter bankruptcy. Municipalities do not guarantee the taxpayers correct action on the part of their officers. Irregular action does not necessarily injure the parties concerned, and, when it does, the remedies given by review, appeal, or by way of defense to proceedings to enforce the tax are supposed to afford full redress. Cooley, Tax'n, 566. In this case the property was subject to taxation. The illegality or irregularity complained of consisted exclusively of the action of the state board of equalization in raising the assessed value of one class of real estate in the town without making the same increase on another class. This illegality or irregularity appeared from the public records. Plaintiff had the means of discovering this, and he was just as much bound to inform himself of the fact as were the public authorities. Every man is supposed to know the law. If plaintiff was ignorant of the facts of which he now complains when he paid the tax, it was because he failed to avail himself of the means of information which were open to him. Having paid his tax without investigation, and without duress of either person or property, the payment must be deemed voluntary."

The trial court correctly held that plaintiffs could not recover any part of the taxes paid by them to the county treasurer.

Such court also held that the money received by the county treasurer under the purported levy for "road and bridge purposes" had not lawfully been appropriated for such purpose by any vote of the electors of the defendant township, and said court decreed that no part of such fund so collected should be paid out for such purposes until such time as the said electors, at a proper meeting, had voted to so appropriate it, or until the defendant Bloodgood had, in a proper action, recovered a judgment against the township. Plaintiffs appealed from the whole of the judgment rendered by the trial court; but, as we read their brief, they virtually concede that, if this money is not repaid to them, it should be subject to the payment of Bloodgood's claim under either one of the conditions precedent prescribed by the trial court. We are not therefore called upon to determine whether the said court was correct in that part of its decree relating to the payment of the Bloodgood claim.

The judgment of the trial court is affirmed.

CORSON, J.

I am unable to concur in the views expressed by the majority of the court in this opinion, and in my judgment, under the findings of fact, the court's conclusions of law and the judgment of the court are erroneous, and the judgment and order denying a new trial should be reversed. The findings of the court, which substantially follow the allegations of the complaint, are, in substance, as follows:

That at the annual meeting of Clifton township, held on March 3, 1909, "$800 for all town levy was agreed upon," and that no other tax appears upon the records of said meeting as having been levied by the electors of said township for that year. That thereafter, on March 31, 1909, the township clerk of Clifton township filed with the county auditor of Beadle county a certificate in words and figures as follows:

"... To T. C. Young, County Auditor, Beadle County, S. Dak.:

"I hereby certify that the annual meeting held in the township of Clifton, ...