First Nat. Bank v. Sanders County

Submitted June 24, 1929. Taxation ? National Bank ? Unlawful Levy of Assessment ? Statutes and Statutory Construction ? Payment Under Protest and Action to Recover Back ? When Exclusive Remedy. Taxation ? Unlawful Levy of Assessment ? Payment Under Protest ? Action to Recover Back Exclusive Remedy. 1. Section 2269, Revised Codes of 1921, provides that a party who deems a tax unlawful may pay it under protest and bring suit within sixty days after November 30 of the year in which the tax was paid, to recover it back. Plaintiff national bank whose property, like that of other such banks, was assessed at forty per cent of its actual value under the Classification Act, whereas property of the same character owned by state banks was assessed at only seven per cent of such value, paid the first half of its taxes without protest. After the supreme court of the United States in Commercial National Bank v. Custer County, 275 U.S. 502, had declared that method of assessment discriminatory and void as against national banks, plaintiff paid the second half under protest, asked for a refund of the difference between the amount due under the seven per cent and the forty per cent assessments, was granted it, and then brought suit to recover the first payment, under section 2222, Revised Codes of 1921, declaring that any tax erroneously or illegally collected may by order of the board of county commissioners be refunded. Plaintiff had judgment. Judgment reversed, and held, after a review of the history of the above and other kindred sections, that the remedy provided by section 2269 for the recovery of taxes collected under an unlawful levy is exclusive, except where the tax is wholly illegal when, under section 2268, injunction will lie, and that section 2222 is not applicable, held, further, that the payment was made voluntarily and may not be recovered back for that reason. Same ? Portion of Statute Empowering Board of County Commissioners to Refund Erroneously or Illegally Collected Taxes, Making It Duty of State Auditor to Draw Warrant for State's Portion of Tax Inoperative. 2. Section 2222, Revised Codes of 1921, authorizing the board of county commissioners to order a refund of erroneously or illegally collected taxes, held inoperative in so far as it provides that the state auditor must draw his warrant for the state's portion of such taxes, the auditor being prohibited by law from drawing a warrant in the absence of legislative appropriation to cover it. Same ? Payment of Tax Under Unlawful Levy ? Exclusive Remedies, Legal and Equitable. 3. Held, that the legal remedy by action to recover back a tax paid under protest on a levy deemed unlawful, provided by section 2269, Revised Codes of 1921, when read in connection with section 2272, which provides that such action shall supersede all other remedies which might be invoked to prevent the collection of taxes alleged to be irregularly levied or demanded, and the equitable one, by injunction in the instances enumerated in section 2268, are exclusive; that where a tax is wholly illegal or the legal and illegal portions thereof appear to be inseparable, either remedy is available; and that to the extent the above holding with reference to the legal remedy conflicts with section 2222, the latter section must be considered repealed.