#### William W. Harding, Appellant, v. J. E. Wiley et al., Appellees.

Gen. No. 6,783.

Schools and school districts, § 133 * —when tax paid cannot be recovered. One who, though under protest, pays a school tax to a collector who neither makes nor threatens a distraint therefor, makes such payment voluntarily and not under duress or compulsion, and cannot recover it back, notwithstanding the tax had been certified by a board of education against which a judgment of ouster had been affirmed by the Supreme Court and a hill to enjoin the collection of an earlier tax certified by such hoard had been filed.

Appeal from the County Court of Peoria county; the Hon. Robert H. Lovett, Judge, presiding. Heard in this court at the April term, 1920.

Affirmed.

Opinion filed June 29, 1920.

E. E. Harding, Elmer J. Slough and Charles S. Stubbles, for appellant.

*2Cameron & Anderson, for appellees; George W. Hunt, of counsel.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Heard

delivered the opinion of the court.

This is an action for money had and received, commenced before a justice of the peace of Peoria county, Illinois, on the 18th day of October, 1919. On hearing without a jury judgment was rendered. Appeal was taken to the county court of said county.

At the January term, 1920, of the county court, by agreement of parties, a jury was waived and case submitted to the court upon a written stipulation of facts and propositions of law. The facts as shown by the stipulation are that in April, 1916, a high school district was attempted to be organized under Act of June 5, 1911, and later appellees were elected members of board of education for said district and entered upon the duties thereof. At the June term, 1916, of the circuit court, quo warranto proceedings were instituted against appellees and on November 27, 1916, a judgment of ouster was entered. Later a writ of error was sued out and heard at April, 1919, term of the Supreme Court and judgment of circuit court was affirmed. People v. Wiley, 289 Ill. 173. Appellees, acting as a board of education, certified levies to the county clerk of Peoria county for the purpose of raising taxes for alleged high school purposes for the district in litigation for the years 1916-1917-1918, and the same were spread against the lands and personal property of the district.

The tax of 1916 was enjoined by relators in quo warranto proceedings, but taxes, or sums of money, in the form and under the assumed authority of the revenue laws of Illinois, as taxes, for the years 1917 and 1918 were paid under protest by appellant after a bill for injunction had been filed agaipst the collection of school tax levied for 1916 and also after a conference *3with the county collector and the local tax collectors of Brimfield, Jubilee and Rosefield townships for the purpose of allowing appellant and ninety-three other relators the opportunity of paying taxes over which there was no dispute and holding back the amount levied by defendants as a school tax, said conference resulting in the county treasurer (ex-officio county collect- or) notifying said local collectors to collect all taxes against property on their books or none. After the foregoing conference the appellant went to his local town collector, who had accompanied him on that occasion and in whose possession the books were held, and paid the tax for the 2 years in question. The collector made no distraint nor threatened to make any distraint for said tax. The local collector did, however, write upon the receipt delivered to the appellant and upon the margin of the tax books then in his possession, the words “High School Tax No. 154 paid under protest.” This indorsement at the time was made at the request of and on behalf of the appellant.

Appellant was one of the relators in the quo warranto proceedings mentioned above and had full knowledge of all the facts with reference to the purported school district and the tax levies.

In Conkling v. City of Springfield, 132 Ill. 420, a case in which the circumstances of payment were like those in the present case, the court said: “As a general rule, where a person is compelled,' by duress, to pay an illegal tax for which he is not liable, he may recover it back. The rule on this subject is well stated by Shaw, O. J., in Preston v. Boston, 12 Pick. [Mass.] 13, as follows: ' A party who has paid voluntarily, under a claim of right, shall not afterwards recover back the money, although he protested at the time against his liability. * * * But it is otherwise when a party is compelled, by duress of his persdn or goods, to pay money for which he is not liable. It is not voluntary, but compulsory, and he may rescue himself *4from such duress by payment of the money, and after-wards, on proof of the fact, recover it back.’ ‘The warrant to collect * * * is in the nature of an execution. * * * When, therefore, a.party not liable to taxation is called on, peremptorily, to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress, and not voluntarily, and by showing that he is not liable, recover it back as money had and received. ’ The rule in the case cited was approved by this court in Bradford v. City of Chicago, 25 Ill. 415. The same rule was sanctioned by the Supreme Court of the United States in Union Pac. R. Co. v. Dodge County Com’rs, 8 Otto 541.

“It is manifest, on a moment’s reflection, that the facts relied upon here do not bring the case within the rule announced in the cases cited. So far as the tax on real estate is concerned, the town collector had no authority, under the statute, to levy on personal property. If payment was refused, it was his duty to return the land delinquent to the county collector, and the county collector, in case, payment was not made to him within the time prescribed by the statute, could only collect by obtaining judgment and selling the land. As to the personal property tax, the collector held a .warrant which authorized him to levy on personal property, but before he was authorized to levy, section 155 of the Revenue Law [ J. & A. ft 9374] required him to call on the persons taxed, at least once, at his place of residence, or business, if in the town of the collector, and demand payment of the tax. This had not been done when the taxes were paid, and while the collector held a warrant, as he could make no levy at the time the taxes were paid it cannot be held that the payment was a compulsory one. Had the taxes been demanded by the collector, and after demand he had attempted to levy on personal property, and to avoid *5a levy and sale the plaintiff had paid under protest, then he might well insist that the payment was made by compulsion; but such is not this case.”

We are of opinion that under the law of this State we must hold that the payments made by appellant were voluntarily made and not made under compulsion or duress and therefore cannot be recovered.

The judgment of the county court is affirmed.

Affirmed.