
    Wilson v. Pelton.
    1; An action against a county treasurer under section 5848 of the Revised Statutes to recover back taxes paid, which were illegally assessed, cannot be maintained when the taxes were paid voluntarily, and without . protest or objection.
    2. Where such taxes were paid after the twentieth day of December, and the treasurer, prior to the payment, had made no effort to collect them, or to enforce payment by any process authorized for that purpose; but received the taxes when payment was offered in the usual course of his official business. Held: That payment thus made was voluntary.
    Error to the District Court of Cuyahoga County.
    This action was brought in the court of common pleas of Cuyahoga county, by the plaintiff in error, to recover back taxes which he had paid to the defendant in error as county treasurer, and which he claimed had been illegally assessed.
    Plaintiff in error in his petition alleges “That he stood charged with the sum of $13,130-i1^g- as a tax levied and assessed upon his personal and chattel property, for the year 1875, for state, county and municipal purposes; that, in fact, only $4,784 had been levied upon said personal and chattel property for said year,-and that the same had been levied for state and county purposes by the general assembly and the county commissioners of said county. That the county auditor of said county, in making up the duplicate aforesaid for 1875, pretended to include in said sum of $13,130^^, so placed therein as aforesaid, and in order to make up said last mentioned sum, the sum of $8,345^f, as being levied for said year by the city council of the city of Cleveland, but in fact neither the same nor any part thereof, was so levied by said city council, or any other person or persons or body corporaté, but the same was so placed on said duplicate and charged against this plaintiff without any authority whatever by said defendant, and this plaintiff was required and compelled by said defendant to pay the same, and did so pay the same on the 31st day of December, 1875.”
    The defendant answered the petition: “ That it is true that on the county duplicate of said county, for the year 1875, said plaintiff stood charged with the sum of $13,180as a tax levied and assessed upon his personal and chattel property for said year for state, county and municipal purposes. He says further, that said levy was based upon a return made by the said plaintiff, and was regularly and lawfully made, and that the sum of $13,130-Jj55-, paid by the said plaintiff on the 31st day of December, 1875, was justly due him as treasurer of said county, and was paid by said plaintiff without objection or protest, and the same was paid over, by the defendant, to the state, county and city authorities, less his percentage, without notice of the claim of plaintiff.”
    The bill of exceptions shows that no evidence was offered on the trial in the common pleas except what tended to show on the part of the plaintiff, that in levying that part of the amount above stated which was levied by the city of Cleveland, the city levied an amount exceeding that which wms authorized by law. And what tended to show on the part of the defendant, that the tax levied by the city was levied by authority of law, and by proceedings which were regular.
    
      Samuel JE. Williamson, for plaintiff in error.
    Illegal taxes paid may be recovered although paid without protest. 2 S. & C., 1151; Stephan v. Daniels, 27 Ohio St., 527; Amesbury W. .$• C. Mfg. Co. v. Inhabitants of Amesbury, 17 Mass., 461; Boston S. G. Co. v. Boston, 4 Metc.,T81; Atwell v. Zelujf, 26 Mich., 118 ; National Bank v. Watkins, 21 Id., 483.
    
      Kain, Sherwood Bunts and Stone Hadden, for defendant in error.
    Taxes voluntarily, paid cannot be recovered. Allentown v. Saeger, 20 Pa. St., 423; Board of Health v. Taylor, 31 Id., 73 ; Marriot v. Hampton, 7 Tenn. R., 269; 2 Smith’s Leading Cases, 237 and note ; Bailroad Co. v. Cummins, 98 U. S., 543; Galveston City Co. v. Galveston, ■ 56 Tex., 494; Town Council, of - Cahoba v. Burnett, 34 Ala., 400; JElston et al, v. Chicago, 40 111., 514 ; Storer v. Mitchell, 45 Id., 214; Baltimore v. Lejferman, 4 Gill, 425; Mays v. Cincinnati, 1 Ohio St., 268 ; Smith v. Beadfield, 27 Me., 145 ; Navigation Co. v. Tappan, 16 Blatchf., 297 ; Ligonier v. Ackerman, 46 Ind., 552; Dillon Mun. Corp., sec. 751, note.
    The fact that the party at the time of making payment files a written protest does not make the payment involun-" tary. 98 U. S., 543; 16 Blatchf., 297; Dillon M. C., sec. 751, n. p., 860; 66 Ala., 194.
    But when may a-party be said to be under an immediate and urgent necessity to pay ?
    The law at the time the plaintiff in error paid the taxes now sought to be recovered provided that “when one half the taxes (personal) charged against any entry shall not be paid on or before December 20, next after being charged, or the remainder on or before June 20, next thereafter, the county treasurer shall proceed to collect by distress or otherwise as may at the time be provided by law, together with five per cent, on the amount so delinquent.” Rev. Stat., sec. 1094; 2 S. & C., p. 1476, sec. 114.
    Is the fact that the treasurer was at the time of payment, to wit, December 31, 1875, authorized to proceed by distress, or otherwise, to collect the tax, although he had taken no steps to do so, sufficient to constitute compulsion ? Raisler v. Mayor fc. of Athens, 66 Ala., 194 (1880); Swanstown v. Grants, 63 111., 165; Elliott v. Swartwout, 10 Pet., 137; MeOrichart v. Pittsburg, 88 Pa: St., 133.
    But to authorize a recovery the tax must have been paid under protest. The object of a protest is to take from the payment its voluntary character and thus preserve to the party a right of action to recover it. 4 Wait’s Actions and Defenses, p. 494; 7 Id., p. 403; Bálcer v. Cincinnati, 11 Ohio St., 534; Elliot v. Swarüvout, 10 Pet., 137; Smith v. Readfield, 27 Me., 145; Ligonier v. Acherman, 46 Ind., 552; Busby v. Nolan, 39 Id., 234; MeOrichart v. Pittsburg, 88 Pa. St., 133; Raisler v. Mayor c., 66 Ala., 194; Rogers v. Grreenbush, 58 Me., 391.
    In Busby v. Nolan, supra, it is said that one who pays without protest is estopped from disputing the validity of the tax.
    As to the nature of the protest, see Rogers v. Gfreenbush, 58 Me., 391; Meeh v. MeOlure, 49 Cal., 623. '
   McCauley, J.

The plaintiff alleges in his petition that he was required and compelled by the defendant to pay the taxes he seeks to recover back. The defendant in his answer alleges that the taxes were paid by the plaintiff without objection or protest and, after payment, the taxes were paid over to the city of Cleveland without knowledge of the claim of the plaintiff. This allegation of the answer is not denied by the plaintiff, and no evidence is offered on either side to show the precise circumstances under which the tax was paid.

Conceding that the part of the tax levied by the city was in excess of the amount authorized by law to be levied, and that payment of it could have been successfully resisted, and if payment had been enforced that it might have been recovered back, this case presents the question whether, when a tax has been paid without objection and afterwards it turns out that the tax or part of it was illegal, it may be recovered back.

The right to recover in cases of this kind depends, aside from the question affecting the validity of the tax, mainly upon the manner in which the payment of the tax was enforced. Where the tax was paid, as in Stephan v. Daniels, 27 Ohio St., 527, to prevent the sale of lands as delinquent, for non-payment of taxes, or where payment has been enforced by legal process of any kind, which threatened the seizure or sale of property to satisfy the tax, after payment, it may be recovered back.

But where the tax is paid without objection, the fact that it is afterwards ascertained that it was illegal does not authorize a recovery of the tax. 88 Pa. St., 133; Sanborn v. Commissioners, 97 U. S., 181; Railroad v. Commissioners, 98 Id., 541.

The treasurer took no steps to collect the tax of the plaintiff, but held the duplicate and received the tax when it was offered. It is contended that the fact that the treasurer held the duplicate and by law could, in case the tax was not paid, enforce payment by summary process, is to be regarded as a collection enforced by process. It has been held in many cases that where the tax is paid to an officer holding a warrant for its collection the payment is involuntary. Preston v. Boston, 12 Pick., 14; Nichodemus v. East Saginaw, 25 Mich., 456; Atwell v. Zeluff, 26 Id., 118; Glass Co. v. Boston, 4 Metc., 181.

But in no case has it been held that the fact that the treasurer could by law enforce payment was to be regarded as a menace to the taxpayer, which of itself rendered all payment involuntary and enforced.

This view was urged upon the supreme court of Pennsylvania in the case of McCrickart v. Pittsburgh, 88 Pa. St., 133, but the court refused so to hold and announced the rule to be, that where there is no mistake or fraud, a volunfcary payment can not be recovered back merely because one party was under no obligation to pay and the other had no power to receive.

We think these powers given to the treasurer, without effort on his part to resort to the enforcement of them, do not have the effect to make the payment involuntary. If they did, it would be difficult to see how any payment could be voluntary.

Counsel for plaintiff in error rely largely upon the case of Stephan v. Daniels above referred to, to maintain a right of recovery in this case. The principles determined in that ease which are supposed to have a controlling influence are, that the statute of 1856, S. & C., 1151, now Revised Statutes, section 5848, created new statutory rights of action not theretofore existing, and that to authorize a recovery in such case two things must be shown, — first that the tax is illegal, and second that it has been collected by those authorized by law to make the collection.

As to the first consideration, that the statute created new rights of action, an examination of the case shows, by the comparison there made of the provisions of the statute with the law as it then was in such cases, that it merely provided a remedy in a class of cases in which, without it, there was practically no remedy. And only so far as it provided a remedy not then available it created new rights of action.

The fact, if it be such, that the statute created new rights of action is not a material consideration in such cases, unless it had provided that taxes might be recovered bade upon the single fact that the tax was illegal, which it does not.

Aside from the fact that the tax is illegal, the right of recovery is left at large by the statute, subject to all questions of waiver, estoppel or other defense — which may be urged with the same force in this class of cases, as in any other in which such defenses are pertinent. A statute creating new rights of action does not, because it has that effect, exclude proper matters of defense. The statute providing an action for causing death by wrongful act, created rights of action not theretofore existing. An administrator can recover assets of an estate in the hands of a former administrator of the same estate only by force of a statute. It would hardly be thought, because these actions are statutory, that all matters of defense are therefore excluded. Hence the conclusion above stated, that the fact that new rights of action are thus given, does not in any way affect the case on its merits, does not restrict the right to plead and prove any state of fact that on legal principle ought to defeat a recovery.

The facts necessary to be shown % as determined in the case above referred to, that the tax is illegal and that it has been collected by those authorized by law to make the- collection, as that language was there uéed by the court, were not shown in this case. The court, speaking of the means used to make the collection, say: It being admitted that the tax is a nullity it only remains to inquire if it has been collected under process of law. And then the court proceed to inquire whether the facts attending the collection were such as made the payment of the tax involuntary and enforced — and that is the material question determined in the case and upon which the decision rests.

In pursuing this inquiry, if the facts before the court had shown, as they do here, that the tax had been voluntarily paid, there can be no doubt that'the conclusion reached would have been the exact reverse of what it was.

We think therefore that it was competent for the treasurer to make the defense, that the tax had been voluntarily paid, and that the plaintiff in error by such payment, waived all objection he might have urged against the illegality of the tax in an action to enforce its collection.

Judgment affirmed.  