Schmittler v. Sunflower County

• Decision Date: 13 January 1930
• Docket Number: 28302
• Citation: 156 Miss. 227,125 So. 534
• Court: Mississippi Supreme Court
• Parties: SCHMITTLER v. SUNFLOWER COUNTY

125 So. 534

156 Miss. 227

SCHMITTLER v. SUNFLOWER COUNTY

No. 28302

Supreme Court of Mississippi

January 13, 1930

Division A

1 FISH. License fees voluntarily paid for privilege of seining or netting for fish, and paid into special county fund could not be recovered (Humingway's Code 1927, sections 5385, 8273).

License fees voluntarily paid to county sheriff for privilege of seining or netting for fish in bayous, lakes, and streams of county, and paid into bird, game, and fish fund of county under Hemingway's Code 1927, section 5385, could not be recovered, since Laws 1926, chapter 195 (Hemingway's Code 1927, section 8273), providing that it shall not be necessary that payments be made under protest in order to authorize refund out of state treasury by state auditor, could not be extended by construction to apply to refund of license fees paid into special county fund.

2. PAYMENT. In suit to recover license fees wrongfully collected, question of voluntary payment could be raised under plea of general issue.

In suit against county to recover license fees for privilege of seining or netting for fish, alleged to have been wrongfully collected, question of voluntary payment could be raised under plea of general issue, since plaintiff must allege and prove that payment of tax was involuntary on his part.

3 PAYMENT. Payment is "voluntary," where there is no duress nor necessity of making payment to free person or property from legal restraint.

Payment is "voluntary" in sense that no action lies to recover back amount, not only where it is made willingly and without objection, but in all cases where there is no compulsion or duress, nor any necessity of making payment as means of freeing person or property from legal restraint or grasp of legal process.

APPEAL from circuit court of Sunflower county HON. S. F. DAVIS, Judge.

On suggestion of error. Suggestion of error overruled.

For former opinion, see 125 So. 534.

Judgment affirmed. Suggestion of error overruled.

Allen & Allen, of Indianola, for appellant.

A person who pays out money for taxes or privileges which are not due may recover the same back, even though no protest was made on the payment thereof since the legislature enacted chapter 195, Laws of 1926; Section 8273 of Hemingway's Code of 1927; Riley v. Ammon, 108 So. 296.

The legislature has provided that a refund of privilege taxes, passing both in the state and county treasuries, may be made even though not paid under protest, when such taxes were erroneously paid or were not due.

Chapters 195 and 196 of Laws of 1926, secs. 8273-8270, Hemingway's Code of 1927.

Chapman, Moody & Johnson, of Indianola, for appellee.

A payment is voluntary in the sense that no action lies to recover back the amount, not only where it is made willingly, and without objection, but in all cases where there is no compulsion or duress, nor any necessity of making the payment as a means of freeing the person or property from legal restraint or the grasp of legal process.

37 Cyc. 1179B.

Taxes voluntarily paid without protest cannot be recovered, although without legal authority.

Union Land & Timber Company v. Pearl River County, 106 So. 277; 37 Cyc. 1178-4a, 1188 and 1189.

OPINION

Cook, J.

The appellant, Fred Schmittler, filed this suit against Sunflower county, seeking to recover certain sums alleged to have been wrongfully collected from him and certain other persons who had assigned to him their claims against the county, for the privilege of seining or netting for fish in the bayous, lakes, and streams of Sunflower county; and, from a directed verdict in favor of the county, this appeal was prosecuted.

The declaration, as finally amended, alleged that the appellant and his assignors were all resident citizens of Sunflower county, and that they had each been required to pay out and expend, at the instance of the sheriff of said county, for privilege licenses that were not due, and which were unlawfully exacted and collected, and were paid involuntary under duress and compulsion, certain named amounts for permission to seine and net for fish in said county; that the funds so collected by the sheriff of said county were paid into the bird, game, and fish fund of said county under and by virtue of section 5385, Hemingway's 1927 Code; that the parties named in the declaration, as having been unlawfully required to pay such privilege taxes, except the appellant, had, for a valuable consideration, assigned their claims for a return thereof to the appellant; and that such claims had been filed with, and disallowed by, the board of supervisors. As exhibits to the declaration, there were filed the privilege licenses issued to the appellant and his various assignors, the written assignments to appellant, and a copy of the order of the board of supervisors disallowing the claims.

To this declaration the appellee filed a plea of the general issue, and a special plea averring that all items sued for, except those alleged to have accrued during the years 1926, 1927, and 1928, were barred by the three-year statute of limitation, and also a special plea averring that the appellant and each of his assignors voluntarily made applications for privilege licenses for seining, or using a fish net in said county, and agreed to pay the privilege taxes required, and did, without any request, demand, or threat from the sheriff of said county, and without any protest or objection on their part, and without compulsion by the sheriff or other officer, pay the privilege taxes, the return of which was sued for. To these two special pleas demurrers were interposed and sustained, and the cause proceeded to trial upon the declaration and the plea of the general issue.

The evidence shows that, during the years 1923 to 1928, there was in force in Sunflower county an ordinance or order of the board of supervisors prohibiting the use of seines, barrel nets, or other contrivances for taking fish from any bayou, lake, or stream not wholly on the lands of one person, and from the Sunflower river within one mile from where any bayou, lake, or other stream empties into it, and from putting fish traps in any bayou, lake, or river of said county, without first obtaining a special permit or license so to do from the board of supervisors of the county, and the payment of the fees fixed thereby for the issuance of such license or permit, and fixing a penalty for the violation of any provision of said order or ordinance. It was further shown that, in compliance with these regulations or orders of the board of supervisors, the appellant and his several assignors made applications for licenses to seine in the bayous, lakes, and streams of the county, and thereupon licenses so to do were issued to them by the sheriff and tax collector of said county, upon the payment to him of the amounts fixed and required for that purpose by such orders of the board of supervisors. The amount so paid to the sheriff for such license was shown partly by oral testimony and partly by a record kept in the sheriff's office, known as "Hunter's and Seiner's Cash Book," and the proof further shows that all of the amounts alleged to have been paid to the sheriff for licenses were voluntarily paid without protest or objection, and without demand or compulsion by the sheriff or other officers.

There are several questions presented by this record...