Pearl River County v. Lacey Lumber Co.

• Decision Date: 10 January 1921
• Docket Number: 21449
• Citation: 86 So. 755,124 Miss. 85
• Court: Mississippi Supreme Court
• Parties: PEARL RIVER COUNTY v. LACEY LUMBER CO

86 So. 755

124 Miss. 85

PEARL RIVER COUNTY v. LACEY LUMBER CO

No. 21449

Supreme Court of Mississippi

January 10, 1921

1 TAXATION. Act authorizing special assessment void under constitutional provision as to uniform laws.

Under section 112 of the state Constitution, providing for equal and uniform laws for the assessing and valuation of property chapter 475. Laws of 1916. authorizing Pearl River county to order a new assessment of real property, is void. Horton v. King, 113 Miss. 60, 73 So. 871, cited.

2 STATUTES. Unconstitutional statute void from beginning.

An unconstitutional law is void, it is mere waste paper, and no valid act can be done under it.

3 TAXATION. Rule as to general or special protests to payment of tax stated.

Where a tax levied under an unconstitutional law is paid under a general protest, it may be recovered. Where the act is void or the assessment is void on its face, a general protest is sufficient. If the infirmity is caused by the failure to do a particular thing, or results from facts not apparent of record, a special protest is necessary.

4. TAXATION. Disbursement of tax into different funds no defense to recovery of illegal tax collected.

A county cannot shield itself from the repayment of an illegal tax paid under protest on the ground that such funds have been disbursed to the several funds and taxing districts of the county, and may not be able to reimburse itself from such funds or districts.

5. CONSTITUTIONAL LAW..Taxation. Code provisions held not to confer judicial powers as to claims for taxes illegally collected; legality of claim may be judicially contested.

The scheme provided in section 4346, Code 1906 (Hemingway's Code, section 6980), does not confer judicial power on the auditor and the Attorney General, nor does the allowance of money out of the public treasury require a judicial proceeding. The scheme provided is an easy method to secure uniformity of practice and the judgment of competent officers to act; but the treasurer or other official may contest the legality of the claim in a judicial proceeding in the courts.

HON. A. E. WEATHERSBY, Judge.

Appeal from circuit court of Pearl River County, HON. A. E. WEATHERSBY, Judge.

Mandamus by the Lacey Lumber Company against Pearl River County to compel the issuance of a warrant for the payment of money. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Parker & Shivers, for appellant.

We find the position taken by appellants in this proceeding, supported by the case of Town of Tupelo v. Beard et al., 56 Miss. 532; a case where illegal taxes had been demanded, and collected, an unauthorized tax, where there was no law whatever, for its collection, the authorities collecting, and the persons paying, both acting under a misconception, a mistake, or ignorance of the law, the court there holding that such taxes could not be reclaimed, or recovered, no fraud or imposition being practiced.

In the case now before the court, there was no fraud or imposition practiced, there is none charged in the declaration, and, even though it had been charged in the declaration, the appellant's plea denies unquestionably any such, the allegation of which are admitted by the demurrers of appellee.

In the case of City of Jackson v. Newman, 59 Miss. 385, another case where taxes unauthorized by law was demanded, was collected, without authority of law, illegally, the tax collector had stated to the taxpayer, that he would stop (his team) and the taxpayer paid the taxes, but paid it complaining that it was exhorbitant. The court held that the taxes were beyond the power of the town, to levy or collect; that the taxpayer was entitled to recover unless the payment was voluntarily made. In discussing this question, see page 390, the court said: "Under what circumstance the payment of an illegal, unwarranted tax will be considered to have been made under compulsion, the authorities are widely divergent. In this state it is settled that, if at the time the demand is made, the collector is armed with authority of law, to seize the goods or arrest the party, if the taxes are not paid, and the party objects to its collection, because of its illegality, but pays to prevent a seizure of his goods, or the arrest of his person, the payment is compulsory and may be recovered back.

Citing Vicksburg v. Butler, 56 Miss. 72; on the other hand if the payment is made by the party without objection, it cannot be recovered, although nonpayment would have subjected him to criminal prosecution. In the case at bar the collector had no authority at the time he called on appellees for payment to seize his property, or to arrest his person, nor was any suggestion made that either would be attempted."

On the above statement of facts, our court held that there was no duress of person, or property, that the taxes were voluntarily paid, and that the taxpayer could not recover same. The above shows that our state is committed to the fact, that in order to recover taxes paid on a void law, or void assessment, one which is unauthorized and illegal, such taxes must be paid under a specific protest, as to the illegality of the law, and the tax paid, and that it cannot be recovered, just by the mere objection, or complaint by writing the word "protest" on the receipt. See Town of Wesson v. Collins, 72 Miss. 849, 18 So. 360, 917. The authorities hold that a protest must be full and specific, i. e., it must be an objection on the ground relied on for the recovery. 30 Cyc. 1410H.

To the same effect as the above decisions from our court we find in 26 Ruling Case Law, page 141, as follows: "In accordance with the general law governing voluntary payments, a person who voluntarily pays an illegal tax, even though he pays it under considerable actual pressure, cannot maintain an action to recover it back." This authority cites Brusson v. Board of Directors of Crawford County Levee District, 44 L. R. A. (N. S.) 293, 153 S.W. 828 Ann. Cas. 1915A. 493.

"Whatever may be the ground upon which objection to a tax or the assessment of it may be made, it is as well settled general rule that if the tax is paid by the person assessed voluntarily and without compulsion, it cannot be recovered back in an action at law." 37 Cyc. 1178, 37 Cyc. 1179; Walter v. Board of Education, etc., 31 L. R. A. 329; Merrill v. Austin, 53 Cal. 379; De Baker v. Carillo, 52 Cal. 473, Cyc. 1315.

In the case at bar no reason or grounds, for the protest appear to have been given, and appellant pleaded that such protest as was made by appellees, gave no grounds whatever upon which his protest was based, the demurrer in this case admits the allegation of the plea, and we submit, that the great weight of authority is to the effect that a protest must be specific and should specify the grounds thereof. 37 Cyc. 1185; New Orleans, etc. , R. Co. v. La. Construction, etc., Co., 94 Am. St. Rep. 395; Railroad Co. v. Commissioners, 98 U.S. 541; Editor's note 94 Am. State Report, page 416, sec. 9. Passing to the question of the time, when refund of taxes can be made.

By appellant's second plea, pages 17-18 of the record is set up the defense, that appellee was estopped to recover the funds claimed in this action, by reason of its own delay in prosecuting its claim therefor, until the said money had been distributed into the various fund of the county, including agricultural school fund, consolidated districts, separate school districts and had been legally paid out by the various authorities in control thereof.

By appellant's eighth plea, page 24 of the record, it set up the defense, that the board of supervisors could not make the levy necessary to satisfy the command of the writ of mandamus if same was issued. We refer to these defenses together in this brief since the line of reasoning on which they were interposed can, as we believe, be more satisfactorily handled jointly.

At the time these defenses were interposed, we were not unmindful of the fact that many authorities held that these defenses were not good, nor are we now unmindful of this line of decisions; yet many well reasoned decisions, and much valuable text law, hold that these defenses are good, and while there is much conflict in the authorities on this subject we have concluded that the conflict arises more, as a result of the circumstances and facts controlling in the different cases, than in the law governing the subject that on the conditions and requirements of our laws, in relation to the raising and distributing the revenue by which our various departments or Government are maintained and the peculiar facts in this case that the decided force of sound reason, and the law when applied to the peculiar facts of this case bears us out.

In support of our position above we invite the court's attention to the following authorities; 37 Cyc. page 1177; Commonwealth of Kentucky v. Baske, 11 L. R. A. (N. S.) 1104 and note; New Orleans & N.E. R. R. Co. v. Louisiana Const., etc., Co., 94 Am. St. Rep. 395; Lisso & Bros. v. Police Jury, etc., 53 So. 566, 31 L. R. A. (N. S.) 1141; Fuselier v. St. Landry Parish, 107 La. 231, 31 So. 682.

The tax herein sued for was paid February 1, 1917, and claim therefor was presented to the auditor, and his certificate was issued thereon April 4, 1919, more than two years after payment, and admittedly after distribution and expenditure of the fund. Appellee might have refused to pay the tax as a sale of land therefor would have been void, or might have enjoined the sale for the collection of the tax.

Since appellee has paid the tax, and allowed the matter to stand unclaimed, until all the funds have been expended by the various departments of said county, we contend that...