for which, therefore, he was not liable to be assessed; and it was this proportion for which in fact he had judgment. Perhaps, were such a case again under consideration, it might require a careful revision; but the case was decided upon the ground that the vote for raising the $100 was unauthorized, and without warrant of law, and that the tax therefore was wholly void. We are not aware that any decided case has given sanction to the principle that assumpsit against the town or city will lie to recover back money on the ground of any irregularity, error or mistake, in fact or in law, in the mode of making the assessment. On the contrary, we think it is now definitely settled, by a series of decisions, that in such case the party's only remedy is by application to the assessors for abatement. Rev. St. c. 7, § 37. If the party obtain no satisfactory relief there, he may complain to the county commissioners for a revision. Section 39. And it has recently been decided that if there be any error or mistake; in matter of law, in the proceedings of the commissioners, a writ of certiorari from this court will lie to correct them. Newburyport v. County Commissioners, 12 Metc. 211. Here is an easy, direct, simple and practical remedy given by law, adequate and properly adapted to the case, to be pursued promptly, under proper limitations as to time and course of proceeding, before tribunals specially constituted, and furnished with all the means of affording prompt and efficient relief against all errors, of fact or law, by which a party can be injured by wrong taxation. * * **58 58 See Swift v. Poughkeepsie, 37 N. Y. 511 (1868); Newman v. Supervisors of Livingston Co., 45 N. Y. 676 (1871); Board of Supervisors of Stephenson Fr. 508,11, 12. Co. v. Manny, 56 Ill. 160 (1870); Spring v. Hyde Park, 137 Mass. 554, 50 Am. Rep. 334 (1884). See Falls v. City of Cairo, 58 Ill. 403, 406 (1871): "The precept, which was in the hands of the officer at the time these assessments were paid, did not authorize him to levy upon the goods and chattels of the appellant, but directed him merely to make sale of the lots to satisfy the assessments. In Bradford v. City of Chicago, 25 Ill. 411, it was held that the payment of an assessment, made to a collector of taxes while having in his hands a warrant to levy and collect the amount of the assessment of the goods and chattels of the owner, might be considered compulsory, and made under such circumstances as would authorize the party paying the money to recover back the same, if the assessment was illegally made. But it was decided in Stover v. Mitchell, 45 Ill. 213, that a levy of an execution upon one's land did not make a case of such duress or compulsion that a payment made to prevent the sale of the land under the execution could be recovered back as a compulsory payment. It was held to be a voluntary payment, and not one made under duress; and it is there said: 'It is insisted that the levy of the execution on Stover's land was the exercise of such compulsion as to interfere with Stover's freedom of action. No case is cited going to this extent, and we venture to say none can be found. In order to render such a payment compulsory, such a pressure must be brought to bear upon the person paying as to interfere in some way with the free enjoyment of his rights of person or property'-citing Bradford v. City of Chicago, supra, and Elston v. City of Chicago, 40 Ill. 514, 89 Am. Dec. 361. There was here no interference with the plaintiff's free enjoyment of his property, and there would not have been, by making sale of it under the precept. Such sale would not have disturbed his possession of the property. He would then have had two years to redeem from the sale, Cal Const. Art XX § 6 CCP sec 1240 605 Reg: C.C.P. app. 1909 edn (State). p.867- (Deering. Stats 1898 $57 Stats 1909.7 1Jayes 26699. (esp.667 Bd of Control. Amot to Tal Code. Art XVIII & 654-691. Stat 1911 591 Ch. 7) ACTIONS TO RECOVER DAMAGES OR MONEY. 363 SECTION 41.-ACTION AGAINST STATE OR GOVERN MENT nul stat Freund Puvate d'rs Must examire stats 5 Hates forbid suit. und. Ill. Is have con Al Broors for suing Cal Art XX §6 brows" ACT ILL. MARCH 23, 1819. (Laws Ill. 1819, p. 184.) An act directing the mode of bringing suits, by and against the state, counties, townships, and other corporate bodies and for other purposes. Section 1. It shall and may be lawful for the Auditor of Public Accounts for the state of Illinois to sue for any demand which the people of the state may have a right to claim; and to be sued for any demand against the people of the state; and to sue and be sued, to plead and be impleaded, to answer and be answered, to defend and be defended, in any court of record, or other place where justice shall be judicially administered, in the name of the Auditor of Public Accounts, for the people of the state of Illinois. * * * Sec. 5. When judgment shall be rendered against the Auditor of Public Accounts for the state of Illinois, [that] it shall be his duty, by his warrant, to draw upon the State Treasurer for the amount of such judgment, and costs, to the time of the rendition thereof, and for no more. And it shall be the duty of the Treasurer to pay the same out and if, at the end of that time, the purchaser had obtained his tax deed, and brought his action of ejectment for the recovery of the possession, the illegality of the assessments could have been shown in defense, and the recovery of possession defeated; or, had the plaintiff desired to remove any cloud which might be brought upon his title by such a sale, he could have had his remedy for that purpose. It is very unlike the case of the payment of money, made to avoid the seizure of goods or to gain the possession of them, where there may be a pressing necessity for their immediate use, and, being of a movable and perishable character, any legal remedy might be inadequate for full protection. The reasons upon which it is held that when a party is compelled, by duresss of his person or goods, to pay money for which he is not liable, the payment is not voluntary, but compulsory, and that he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back, do not apply in the case of real estate threatened with such action, as in the present case. And we think the payment of these assessments was not made under such circumstances of constraint and compulsion as to except it from the operation of the legal principle that if a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterwards recover back the money." Accord: Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512 (1876); Lanborn v. County Commissioners, 97 U. S. 181, 186, 24 L. Ed. 926 (1877). See Etna Insurance Co. v. Mayor, etc., of New York, 153 N. Y. 331, 340, 47 N. E. 593, 594 (1897): "We are also of the opinion that the payment of the taxes for 1887 and 1888, under the circumstances disclosed by the evidence, was not voluntary, and hence the amount thereof may be recovered in this action. At the time these payments were made, section 314 of chapter 409 of the Laws of 1882 was in force. That section provides that a tax upon the shares of a bank organized under the laws of any monies in the treasury not otherwise appropriated. * * ** Provided, that if the Auditor, commissioners, or trustees, as aforesaid, fail or refuse to give such warrant, as aforesaid, upon request, execution may issue against either of them, for the amount of such judgment, in his or their natural and private capacity, and be collected in the same manner, except that no replevy shall be allowed upon such execution, as though it had been recovered against him or them in his or their natural and private capacity.59 ACT ILL. JAN. 3, 1829. (Rev. Laws Ill. 1832-33, p. 593.) An act directing the mode of bringing suits, by or against the state. Section 1. It shall and may be lawful for the Auditor of Public Accounts of the state of Illinois to sue for any demand which the people of the state may have a right to claim, and to be sued and to sue, to plead and to be impleaded, to answer and be answered, to defend and to be defended, in any court of record, or other place, where justice. shall be judicially administered, in the name of the Auditor of Pub of the state, or of the United States, shall be and remain a lien thereon from the day when the property was assessed, and, if transferred after that day, the transfer shall be subject to such lien. As this tax became and remained a lien upon the plaintiff's bank stock, even after a transfer, it deprived it of an essential element of its ownership and of its right to transfer it. That being the effect of the imposition of the tax, we think it amounted to such an impounding or duress of the plaintiff's property as to render the payment so far involuntary as to authorize an action for the recovery of the money thus wrongfully received by the defendant. The plaintiff could only establish its right to a full enjoyment of its property by proof of the facts which entitled it to an exemption under the statute of 1886, in an action or proceeding instituted for that purpose, or by payment of the tax. The defendant having, by its unauthorized act, placed the plaintiff in that position, it cannot relieve itself from a liability to refund the amount it thus wrongfully received by asserting that the payment was a voluntary one, or by claiming that the plaintiff might have pursued some other remedy to relieve its property from the lien thus established. The payment was necessary to relieve the plaintiff's property from the lien to which it was made subject by the wrongful acts of the defendant's officers, unless it instituted a proceeding to establish the invalidity of the tax. The plaintiff, to enforce its rights, elected to pay the tax and thus relieve its property from such lien, and then to institute an action to recover the amount it was obliged to pay, instead of commencing a proceeding to set aside the tax. We think the defendant is not in a position to complain because the plaintiff elected to pursue the former instead of the latter remedy, and that the payment cannot be held to be so far voluntary as to deprive the plaintiff of its right to recover the amount of taxes thus wrongfully levied and received by the defendant." Accord: Stephan v. Daniels, 27 Ohio St. 527 (1875). 59 For earlier legislation, see Act Va. 1778 (9 Hening's St. p. 536), and Commonwealth v. Beaumarchais, 3 Call (Va.) 122-180 (1801); also Act Pa. March 30, 1811 (Dunlop's Laws 1700-1849, p. 287, c. 207), and Fitter v. Com., 31 Pa. 406 (1858). See, also, Blackstone's Commentaries, III, pp. 254-257, as to petition of right. lic Accounts, for the people of the state of Illinois: Provided, that the Auditor shall not be liable to be sued in any other county than that in which the seat of government is situated. And the Attorney General of this state shall prosecute and defend all suits brought by or against the Auditor of Public Accounts, as is prescribed by law. From all judgments, so rendered, appeals may be taken to the Supreme Court, and it shall be the duty of the Auditor to take such appeal, if in his opinion justice has not been done in the court where such judgment has been rendered; nor shall any judgment against the Auditor, in his representative capacity, bind him personally, or be conclusive upon the state, until the same shall be examined by the General Assembly. In cases of appeals by the Auditor, he shall not be required to give bond, or security, as in other cases. Sec. 2. When judgment shall be rendered against the Auditor of Public Accounts for the state of Illinois, it shall be the duty to forward a copy of such judgment, and proceedings thereon, to the next General Assembly, and if approved by the same, an appropriation shall be made to satisfy the same, or such part thereof as said general assembly may deem just. Sec. 3. The act entitled "An act directing the mode of bringing suits, by and against the state, counties, townships, and other corporate bodies, and for other purposes," approved March 23, 1819, is hereby repealed. 60 This act to be in force from and after the first day of June next.oo CONST. ILL. 1848, art. 3, § 34. The General Assembly shall direct by law in what manner suits may be brought against the state. CONST. ILL. 1870, art. 4, § 26. The state of Illinois shall never be made defendant in any court of law or equity. ACT ILL. MAY 29, 1877. (Laws Ill. 1877, p. 64.) An act to create a Commission of Claims, and to prescribe its powers. and duties. In force July 1, 1877. Section 1. There shall be, and hereby is created and constituted a commission to be called the "Commission of Claims," which shall be composed of one of the judges of the Supreme Court, who shall be 60 This act was repealed by Rev. St. 1845, p. 464, c. 90. No such law appears to have been enacted. president of said commission, and two judges of the circuit courts of this state. * * * Sec. 2. It shall be the duty of said commission to hear and determine all unadjusted claims of all persons, against the state of Illinois, and said commission shall hear and determine such claims according to the principles of equity and justice, except as otherwise provided in the laws of this state, and in case said commission shall allow any such claim, they shall make and award in favor of the claimant, finding the amount due to such claimant, and naming the claimant, which said award shall be filed and recorded in the office of the Auditor of Public Accounts, in a book to be kept by him for that purpose. * * * Sec. 5. The Auditor shall, in his biennial report to the Governor, include a detailed statement of all such awards, and said statement shall be laid before the two houses of the General Assembly at its session held next after the filing of said awards. ACT ILL. MAY 16, 1903. (Laws 1903, p. 140.) An act to create the Court of Claims and to prescribe its powers and Sec. 2. The Court of Claims shall consist of three persons, not more than two of whom shall belong to the same political party, learned in the law and experienced in its practice, appointed by the Governor, by and with the advice and consent of the Senate, who shall hold their office for the term of four years, from the time of their appointment and until their successors or successor of either of them, shall be appointed. * * * Sec. 3. The Court of Claims shall have power to make such rules, not inconsistent with or contrary to law, for the government of proceedings before it as it may deem proper, and shall have the same power to enforce such rules, and to preserve order and decorum in its presence, as is vested by common law or statute of this state in any court of general jurisdiction. And it shall be the duty of said court to hear and determine the following matters: First-All unadjusted claims founded upon any law of the state or upon any contract, express or implied, with the government of the state, and all claims which may be referred to it by either house of the General Assembly. Second-All claims against the state for the taking or damaging of private property by the state for public purposes in the construction, or for the use of any state institution, river, canal, or other public improvement, which have not been already barred by any statute or law of limitations, or heretofore heard and determined by said commission. |