Helena v. Dwyer

Wood, J., (after stating the facts). Judge Dillon says: “The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment, over the person or property of another, from which the latter has no other means, or reasonable means, of immediate relief, except by making payment.” 2 Dillon, Mun. Corp. § 943. Again he says: “Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license, or fine, cannot, without statutory aid — there being no coercion, no ignorance or mistake of facts, but only ignorance or mistake of the law — be recovered back from the corporation, either at law or in equity, even though such tax, license fee, or fine could not have been legally demanded and enforced.” Id. § 944. Judge Cooley enumerates, as one of the conditions upon which illegal and void taxes paid to a municipal corporation may be recovered, the following: “It must have been paid under compulsion, or the legal equivalent.” Cooley, Tax. p. 805. And he defines a compulsory payment as follows: “A payment made to relieve the person from arrest, * * * or to prevent a seizure when it is threatened.” Id. p. 84. The principles here announced were approved by this court in Town of Magnolia v. Sharman, 46 Ark. 358. It will be seen, by applying these principles to the facts as found by the court in the present case, that the court erred in its declaration of law, and in refusing to declare the law as asked by appellant. We are of the opinion that the payments made by appellees, under the facts stated, cannot be construed otherwise than as voluntary payments. See First Nat. Bank of Americas v. Mayor, etc., 68 Ga. 119, and numerous cases cited in brief of appellants. Reversed and remanded for new trial.