If a collector arrests a person on an election day, when he is privileged from arrest, the process protects him. He is not to judge of the validity of the privilege, and if the privilege is violated, the party must seek some other remedy; he cannot sue the collector in trespass.1 So, although a tax collected may have been illegally assessed, and the collector liable, if it has been paid, and the party has recovered the amount from the town into whose treasury it has been paid, he cannot recover against the collector. He has elected between his remedies, and is bound by his election."

Although a collector has settled with the State and county for the taxes on his roll, he may continue to collect to reimburse himself as to all taxes not paid, and may levy just as he might before the settlement; these powers continue for such period as may be designated by statute. But it is said that a statute forbidding the courts to issue injunctions to restrain the collection of taxes, does not apply where the collector has settled with the State, for such action then does not delay the State in the collection of its revenue.3

§ 108. Remedy for illegal Tax-Voluntary Payment, and Payment under Compulsion.-We have endeavored to show in this and the previous chapter what persons are liable for an illegal tax. The result may be summed up thus: the tax officers, assessors, supervisors, and collectors are each clothed with a special authority. When they go beyond that authority their acts are illegal. Where assessors act without jurisdiction, and their assessment is not in pursuance of the law, the assessment is void, and they are trespassers. If their want of jurisdiction appears upon the face of the roll, the supervisors who issue the warrant have notice of it, and thus aiding in the commission of the trespass, they too are liable. So, where the roll comes to the hands of the collector, if the error, the want of jurisdiction of either assessors or supervisors, appears on the face of the roll or warrant, he partakes of the wrong, and is also liable as a trespasser. But it is to be noted that when the roll comes into the hands of the supervisors or other officers authorized to issue the warrant, it is presumed to be correct, and unless the error be on its face they cannot refuse to issue the warrant.4

If the tax is paid, and the assessment was illegal, there was no authority to collect the tax; what then is the remedy of the citizen? The money having been paid into the treasury of the State, in justice

1 Wood v. Davis, 34 N. H. 328.

3 White v. State, 51 Ga. 252.

2 Ware ". Percival, 61 Maine, 391.

4 People v. Halsey, 37 N. Y. 344; Clark v. Axford, 5 Mich. 183.

to the citizen it should be refunded; but unless the State has provided by statute a mode of being sued by its citizens, there is no remedy as against the State. Its legislature may however as a matter of favor refund such taxes. Where the tax has been paid into the treasury of a county or city, there is a remedy under some circumstances. But there is also a remedy against the officer receiving the tax; the collector or other officer receiving the tax may be sued in assumpsit for money had and received.

Voluntary Payment, and Payment under Compulsion.—It is a well settled principle of law that a voluntary payment of money under a mistake of law, lays no foundation for an action to recover back the money so paid. Where a man demands money of another as matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid a sum of money voluntarily, he cannot recover it back. These principles have been applied both in England and in this country to taxes illegally exacted by the tax officers, in suits brought against them for money had and received. The difficult questions which arise are generally as to whether under the facts of the particular case, the payment was voluntary or under compulsion. Where the party paying the tax protests against its payment, as illegal, and notifies the collector not to pay over the money to the State, especially if such payment is made to prevent a seizure of his goods or to get possession of them, the payment is not voluntary. And although there may be no formal protest and notice of intention to sue, where the goods of the party have been seized under process, or the officer threatens to seize them, and has the authority to do so, a payment to obtain possession of them or to prevent a seizure is not voluntary. In the language of Campbell, J.: "Where an officer demands a sum of money under a warrant directing him to enforce it, the party of whom he demands it may fairly assume that if he seeks to act under process at all, he will make it effectual. The demand is equivalent to the service of a writ on the person. Any payment is to be regarded as involuntary which is made under a claim involving the use of force, and he can

2

1 Brisbain v. Dacres, 5 Taunt. 154; Bromley v. Holland, 7 Vesey, 23.

Irving v. Wilson, 4 Term R. 485; Greeway v. Hurd, Id. 554; Ripley v. Gelston, 9 Johns. 201; Elliott v. Swartwout, 10 Pet. 137; State Tonnage Tax Cases, 12 Wall. 209; Walker v. City of St. Louis, 15 Mo. 563; 20 Ib. 143; New York & Harlem R. R. Co. v. Marsh, 12 N. Y. 398; Dubuque & Sioux City R. R. Co. v. Supervisors of Webster Co. 40 Iowa, 16.

3 Allen v. Burlington, 45 Vt. 202; affi'g Babcock v. Granille, 44 Vt. 325; Elliott v. Swartwout, 10 Pet. 137.

+ Irving v. Wilson, 4 Term R. 485.

not be held to expect that the officer will desist after once making demand. The exhibition of the warrant directing forcible proceedings, and the receipt of money thereon, will be in such case equivalent to actual compulsion." The doctrine so well delineated by Judge Campbell is well sustained by authority. Payment to an officer who has a warrant for the collection of taxes, where the party called upon must pay or suffer his property or person to be taken, is a payment by compulsion. So, where a sum of money is demanded by a collector for the clearance of a vessel, and objection is made to the payment, but the money is paid in order to obtain the clearance; or where costs were illegally exacted by a marshal as the condition of a delivery of a vessel seized under process, such payments are under compulsion.3

In the following cases the general doctrine was admitted, but the facts were considered not to be sufficient to make the payment one. under compulsion. The party was arrested for non-payment of the tax, promised to pay if released, was released, and about a week afterward paid the tax and costs; this payment was held voluntary. So when land had been sold for non-payment of taxes, and deeds were about to be made, to prevent the issue of the deeds, the taxes and costs were paid, this payment was held to be voluntary, first, because under the facts of that case the deeds would have been void, and secondly, because there was a remedy by statute to set aside the deeds without paying the money, and therefore there was no element of compulsion. Where a payment was made to a treasurer, of certain taxes, and it appeared that the cause of the payment was that the party, as a purchaser of lands, offered his deeds to be recorded, and the register refused to record them until a certificate of payment of all taxes due on the land was obtained from the auditor. In a suit against the treasurer the payment was considered voluntary, seemingly on the ground that the acts of the register were not to be attributed to the treasurer.6

When the tax paid is illegally assessed, and is paid under protest, under compulsion, or with notice that the party intends to institute suit to test the validity of the tax, it may be recovered back of the collector in an action for money had and received. When the party

1 Atwell v. Zeluff, 26 Mich. 118; affi'g 21 Mich. 483.

2 Snowden v. Davis, 1 Taunt, 358; George v. Mendon, 6 Metc. 497.

3 Ripley v. Gelston, 9 Johns. 201; Clinton v. Strong, Id. 370; but see Taylor v. Board, 31 Penn. St. 73, contra.

4 Fellows v. School District, 39 Maine, 559; s. P. Gachet v. McCall, 50 Ala. 307.

5 Phillips v. Jefferson Co. 5 Kansas, 412.

Smith v. Schroeder, 15 Minn. 35.

placed the amount of the tax claimed against him in a package upon his counter, before the collector, forbade his taking it, and notified. him that his warrant was defective, and that he would be held responsible for the taking, and the collector did take the package, such payment was not voluntary.1 It would seem to be the correct doctrine, that where taxes illegally assessed are paid, although there be no formal protest, yet if the collector understands from the payer that the taxes are regarded as illegal, and that suit will be instituted to compel the refunding of them, he is entitled to recover, and the payment will not be considered voluntary.2

In Kansas at one time the doctrine was asserted, that the payment was voluntary though made under protest, unless it was made to release the person or property of the tax-payer from detention, or to prevent an immediate seizure. This doctrine was modified in a case where the tax had been assessed, the period in which it could be corrected had passed, by the statute, a warrant to collect the tax was required to issue in a fixed period, nothing remained to be done, and as soon as the period fixed elapsed, the warrant would issue and be levied. Under these circumstances a payment under protest was considered not a voluntary payment. Where notice is served upon

a tax-payer by the collector of taxes, that unless the tax is paid penalty will be imposed and a warrant issued therefor, a payment to prevent the issue of the warrant, and the incurring of the penalty, is not a voluntary payment.5

It being ascertained that the illegal tax was not paid voluntarily with a full knowledge of all the facts, the next question to be considered is whether the officer has paid over to the State the money received, and what effect such payment will have. If the taxes are illegal, and are not paid voluntarily, the fact that they have been paid over by the collector does not affect the case, and he is still personally liable. There was no authority to make the demand, the officer did what the law did not authorize, and is liable for the wrong committed.

Where a tax is paid under a mistake of fact, it may be recovered back. In such cases it is a material inquiry whether the money has been paid over before notice of the mistake. If it has been paid over before such notice, the officer receiving it is not liable. The distinc

1 Bellinger v. Gray, 51 N. Y. 610.

? Erskine v. Van Arsdale, 15 Wall. 77; and see post, § 142, as to voluntary payment. 3 Wabaunsee Co. v. Walker, 8 Kansas, 436.

4 Kansas Pacific R. R. Co. v. Com'rs of Wyandotte Co. 3 Central Law Jour. 596.

5 Union Nat. Bk. of New York v. Mayor, &c. 51 N. Y. 638; citing 43 N. Y. 189.

6 Elliott v. Swartwout, 10 Peters, 137; State v. Shacklett, 37 Mo. 280.

tion between the cases is broad. In this class of cases there is no wrong done; in the other class of cases the party is presumed to know the law, and he has violated it.1

The remedy of assumpsit for money had and received is against the officer receiving the tax, and does not preclude the party from his action of trespass against him, or against the assessors or supervisors who have taken part in the assessment and collection of the tax. The tax being illegal, all who have assisted in its enforcement are trespassers, and liable for the injury sustained. The party may also have his remedy against the town or county into whose treasury the illegal tax has been paid.2

There is no remedy in equity to restrain the collection of a tax on the sole ground that it is illegal. To justify the interposition of equity the facts must bring the case under some acknowledged head of equity, as irreparable injury, or multiplicity of suits, or where real estate is concerned, that a cloud will be thrown upon the title of the party seeking redress.3

§ 109. The Lien of the State for Taxes.-When the statute does not give an express lien, and fix its date, the tax becomes due when the roll or list is complete, and when the period for the corrections provided for by statute has passed, and when a warrant is issued, the date of the warrant fixes the commencement of the lien. As to real estate, the lien is almost universally given by statute. In reference to personal estate, the principle seems a correct one that the lien begins as soon as the officer receives the list for collection. It has, as we have already seen, the force of an execution in his hands, and to give it that effect would make it a lien upon all the personal estate of the taxpayer actually levied on, the lien relating to the day of the reception of the roll by the officer. In the case of an insolvent corporation, whose property is in custodia legis, the lien acquired by the issue of the warrant takes precedence of the claims of creditors of the corporation. The doctrine was asserted in this case that the people of the State succeed to all the prerogatives of the British crown, so far as they are essential to the efficient exercise of powers inherent in the nature of civil government, and that there is the same priority of right for the State, in respect to the payment of taxes, which existed at common law in favor of the public treasury. When an execution

1

1 Bond v. Hoyt, 13 Peters, 263; citing 10 Peters, 137.

9 Bank of the Commonwealth v. Mayor, &c. of N. Y. 43 N. Y. 184.

3 Chicago v. Dows, 11 Wall. 108.

'Matter of the Receivership of Columbia Ins. Co. 3 Abb. Ct. App. Dec. (N. Y.) 239;

8. c. 3, Keyes, 123.