Analogous to the case of money paid in satisfaction of a judgment (ante, Sec. 229 et seq.) is that of money paid under a void, illegal, or excessive tax or assessment. For boards of assessors and other like bodies are tribunals of a quasi judicial character, and their adjudications have, in a degree, the force and effect of a judgment entered in a court of law.
The method ordinarily employed to compel payment of a tax varies according to the character of the tax itself. State and county taxes on property are usually collected by the summary seizure and sale of personalty or the summary sale of land, while the payment of a license or a franchise tax is commonly coerced by the withdrawal of a privilege or the exaction of a penalty. The obligation to make restitution, however, is in all cases governed by the same principle, and no attempt is made, in the following sections, to give to the various kinds of taxes separate consideration.
Whether or not the action of a board of assessors or a like body must be vacated or corrected before a suit to recover taxes paid may be brought, depends upon the nature of the defect charged. If the assessors are without jurisdiction, or if the statute under which they act is unconstitutional, or if it appears upon the face of the proceedings that they have failed to comply with the requirements of the statute, it is unnecessary to take steps to set. aside their action;1 but if the assessors, having jurisdiction over the person and property, and acting, so far as the record shows, in compliance with the requirements of a constitutional statute, fall into an error which affects the rights of a person assessed, the vacation or correction of their action, by appeal to the state board of revision or by other proper proceedings instituted for the purpose, is a condition precedent to the right to sue for restitution.2
One of the best statements of the distinction is found in Trimmer v. City of Rochester,3 an action to recover money paid upon an alleged illegal assessment for street improvements. It appeared that the taxing officers of the defendant had omitted from the assessment roll realty benefited by the improvement, and for this error assessments against the taxpayers who brought actions to set them aside had been adjudged illegal. Said the court:
"There is a broad distinction between an assessment which is illegal by reason of the existence of some fact outside of the record, and one void on the face of the record, for the lack of jurisdiction of the person or property, or by reason of the unconstitutionality of the statute under which the assessment is made. In the latter case, if money is compulsively obtained it may be recovered from the municipality in an action at law brought by the wronged taxpayer. But in case money is collected under an illegal assessment, it cannot be recovered until the assessment is set aside. . . . The rights of persons from whom money is collected under such assessments are like those of persons from whom money is collected under judgments void; for example, for lack of jurisdiction, and those which are reversible for error. Money collected under void judgments may be recovered without first setting them aside, but that collected under judgments erroneously obtained cannot be until they are reversed.
1 Powder River Cattle Co. v. Bd. of Commrs., 1891, 45 Fed. 323, (C. C. Mont.); Brownlee v. Marion County, 1880, 53 la. 487; 5 N. W. 610; Ross v. Supervisors, 1885, 38 Hun (N. Y.) 20: Mutual Life Ins. Co. v. Mayer, etc., 1895, 144 N. Y. 494, 39 N. E. 386; AEtna Ins. Co. v. Mayor, 1897, 153 N. Y. 331; 47 N. E. 593.
2 Stanley v. Supervisors of Albany, 1886, 121 U. S. 535; 7 S. Ct. 1234 ; Detroit Savings Bank v. Detroit, 1897, 114 Mich. 81; 72 N. W. 14 ; Clarke v. Commrs. of Stearns Co., 1896, 66 Minn. 304; 69 N. W. 25 ; Mayor, etc., of Jersey City v. Riker, 1876, 38 N. J. L. 225; 20 Am. Rep. 386; Trimmer v. City of Rochester, 1892,130 N. Y. 401; 29 N. E. 746; Wharton v. Birmingham, 1860, 37 Pa. St. 371.
3 1892, 130 N. Y. 401, 405 ; 29 N. E. 746.
"It is agreed that the assessment against the realty of the assignor of the plaintiff, and on account of which the money sought to be recovered in this action was paid, has not been set aside, nor have any proceedings or actions been instituted for such purpose. The judgment in Hassen's case did not set aside all of the assessments but only those against the property of the plaintiffs in that action, and the assessment against realty of the assignor of the plaintiff was not affected or invalidated by that judgment, and until it is set aside no action can be maintained to recover the sums paid under it."