Nashville, C. & St. L. Ry. Co. v. Marion County

• Decision Date: 05 March 1908
• Citation: Nashville, C. & St. L. Ry. Co. v. Marion County, 108 S.W. 1058, 120 Tenn. 347 (Tenn. 1908)
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. MARION COUNTY et al.
• Court: Tennessee Supreme Court

108 S.W. 1058

120 Tenn. 347

NASHVILLE, C. & ST. L. RY. CO. v. MARION COUNTY et al.

Supreme Court of Tennessee.

March 5, 1908

Appeal and Cross-Error from Chancery Court, Marion County; Thomas McConnell, Chancellor.

Suit by the Nashville, Chattanooga & St. Louis Railway Company against Marion county and others.From a decree granting insufficient relief, complainant appeals, and Marion county assigns cross-error.Decree in favor of the county affirmed and against it reversed.

Spears & Spears and Brown & Spears, for complainant.

Charles C. Moon and Byron Pope, for defendants.

NEIL J.

The bill in this case was filed for several purposes, but 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 bill 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 was illegal.It interposes, however, 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, § 40, the county court clerk was required to make out and deliver to the trustee 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 had 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 receipt showing protest.The deposition of the attorney then continues: "Then a conversation ensued in which he asked me the reason for this receipt, and I called his attention to the fact that we were paying part of the money under protest, and we might want to recover, and in order to preserve our rights I wanted the receipt, as written out there, signed to show that the taxes were paid as stated in the receipt."

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 79/100 dollars in full settlement of all taxes due Marion county, Tennessee, for the year 1904; the said amount of nine thousand five hundred and eighty-one and 79/100 ($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 74/100 ($6,040.74) 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."

We do not think that the foregoing payment was made under duress.By the very terms of section 50the trustee would have no right to distrain before the 1st day of March; or, rather, the power is given by that section, and not in any other, and under a proper construction the right to distrain did not begin until the day fixed in the section quoted.The payment was made before the 1st day of March, and at a time when the trustee had no power to compel payment.The payment was, therefore, not under duress, but was purely voluntary.

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 in the latest one cited.Bank v. Memphis,116 Tenn. 641, 646, 647, 94 S.W. 606.In that case it is said:

"It is deemed necessary to dispose of two preliminary questions.The first of these is that the money was paid voluntarily, 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 was held that 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; that this was true, although the taxes involved were county

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