Honorable T! M. Timble
First Assistant State Superintendent
Austln, Texas

Dear Sir:                   Ouinion No. O-1266
                            Re: Refunding of school taxes
                                 paid to a school district
                                 on property, which.is lo-
                                 cat&   outside of said
                                 s&i001 district,

            We.are in receipt of your letter of August.10,
1939, in which you request the opinion of this depart-
ment on the following question:

                 "A tax'payer who has Ijroperty ad-
            jacent to a school ,district has been
            prying taxes for school purposes to
            this adjacent district for the last
            several years, bel,#ing that her
            property was in this district. Now
            it deveiops~ th+t the property is not
            in this distri'ct, bvt in an adjoining
            district which has no school tax. Can
            we lawfully refund her taxes paid to
            us, and, if so, what is the procuedure?"

             It is a general principle of law that taxes
which nre voluntarily paid are not thereafter recoverable.
Arrott vs. Allegheny County, 194 At. 910 (Supreme Court of
Pennsylvania): Burley vs. Lindheimer County, 11 N. E. .(2d)
926 N. W. 8Q.(Supreme   Court.of Nebraska). Atkins Guardian
vs. McCoy, 120 S. W. (2d) 1019 (Court of Appeals of Kentucky)'.
These cases make no distincticn between a payment under a
mistake of law, or a payment under a mistake of fact by the
taxpayer.

            In the case at hand, we have a situation where a
legal,tax was paid by a taxpayer under a mistake of fact;
Honorable T. M. Trimble, page 2 o-1266



The taxpsysr believed her property to.be in the taxing dis-
trict bvhere it was assessed by the tax assesscn fcr that
district. There is a conflict of authority throughout the
United States as to whether or not such a payment under a
mistake of fact is a voluntary payment.   Several. cases htive
held the payment of school taxes on prcperty not located
within the taxing district tc be voluntary, an&, therefcre,
not reco,vsrable by the taxpayer.  Gilson vs. Board of Com-
missioners of Allen County, et al., 1.62 Pac. 1158 (Supreme
Court of Kansas); Edwards vs. Board of Commi,ssicners cf
Oklahoma County, et al., 36 Pac. (2d) 6 (Supreme Court of
Oklahona); cialser, et al. vs. Board of Education cf School
District No. 1, 42 N. E. 346 (Supreme Court of 111inci.s).

            The better view seems to be, hoc/ever, that the
payment of taxes on property outside of a toxin2 district,
under a mistake of fact, is not a voluntary payment, and
are recoverable by the taxpayer.

                  "It is a well settled general rule
            that,-if a wrongful or illegal tax is
            paid by the person assessed voluntarily
            and without compulsion, it cannot be re-
            covered back in an action at law, or by
            way of set-off, unless there is some
            constitutional or statut,ory provisicn
            expressly or impliedly giving him such
            rights, although tl-o tax is paid without
            compulsion, and this rule has been apelie:,
            even though payment was made under pro-
            test. But the rule does not apnly to a
            tax paid on land whcl3,y outside the tax-
            i.;: juu&sc$ction of the county levy!.ng
                      .  61 C. J. 985.

                 "In many instances it seems that
            the mistake as to'the correct tax dis-
            trict is, for practical purposes at
            least, one cf fact; as where there is
            no uncertainty as to the location of
            legal boundaries, or as to the legal au-
            thority of the district in question, or
            the general regulari~ty of the tax pro-
            ceeding, but merely from factual forget-
            fulness or inadvertence in the listing
            of the property for tc.xaticn. In suc?~
            cases the better view seems to be that
            there may be recovery if, under the cir-
            cumstances   a denial of recovery would
            be unjust. " 95 A.ti.R. 1224.
* Honorable T. M. Trimble, Page ‘3 o-1266



              A number of $aases in other jurisdiction3 .have
 allowed a recovery of taxes paid on prcoerty nbt within
 the taxing district even thcugh the taxes y/ere paid
 willingly by the taxpayer who believed his property to
 be within the taxing district.     Churchill vs. Board cf
 Trustees of Highland rark Graded School, 89 S. ii. 122
 (Court of Ap eals of Kentucky);    City of Indianapolis vs.
 Patterson, E1  I?. E. 551 (Supreme  Court of Indiana);
 Miller vs. City of Oneida, 272 N. Y. Sup;;. (Supreme Court
 of Nc*v York); In re: Wing, 295 N. Y. Supp. 336; BridRe-
port.:.Hydraulic Co. vs. City of Bridgeport, 130 At. 184
 (Suprcnc Court of Error of Connecticut); Pederson vs.
 Stanle County, 11;9 l?. ;ij*422 (Supreme Court of South~
Dakota 7 .

              The 'Supreme'Court of Texts in the case of the
 County of Galveston vs. J. C. Gorham, 5~9 Tex. 279, first
 recognized that there was a distinction between an il-
 legal tax paid under a mistake of law and a legal tax
 paid by the taxpayer under a mistake of fact. In answer-
 ing the question of whether or not a taxpayer had the
 right to recover taxes paid illegally under a mistake of
 law, the. court said:

                     "We are of opinion that they have
              not, because in such case it 5s volun-
              tarily paid, and it,.under the circum-
              stances,   is not contrary to good con-
              science for the county to reta5.n it.' .It
              was voluntary, because it was without
              objectIon paid under a mistake of law,
              if-it was illegal, and there was no mis-
              take or fact inpayin.q it, and no deceit,
              Fraud. or compulsion used in collectinp:
              it, or in causing it.to be paid', on the
              part of the county or of any of its of- i
              ficers, that prevented the will cf the
              parties paying it from befing freely ex-
              secised in doing the act.

              Tho court further said:

                   "When money is paid under a mutual
              mistake of la:'<,the mistake of !.aw, in
              and of itself, is no ground for recovcr-
              ing it back."

                   "A mistake of fact on the part c,f
             p_"c twhopays, ond deceit or fraud and-
             ~compulsion on the part of one who re-
-.




     Honorable T. M. Trimble, page 4 0-1266



                     ceives, under which money'is‘ paid,-are
                     each and all legally recognized as facts
                     sufricient    in and of-themselves to per-
                     vert the will OS the acrtv dcinn the act.
                     so thatAt could be said knd hayd, that
                     then        did not concur with the act done,
                     thereby relieving him from the responsi-
                     bility for and the consequences of the
                    .&        These,are such facts as it is prac-'
                     ,ficable to judicially investigate, and
                     there is r&great     public policy in fore-
                     stalling their investigation, when they
                     exist in a degree vlell defined, and prac-
                     tically capable of exerting a controlling
                     influence upon the acts of the party who
                     has paid the money, as it may then be said,
                     against his will, or at least in the ab-
                     se,nce of its free exercfse."

                 'The same f,acts as outlined in your letter con-
     fronted the fieaumont Ckrt of 8ivi.l Appeals in the case of
     Frost vs. Fowlertcn &:nsolidated School District Ko. '1L, et
     al., 111 S. W. (2d) 7.54. In this case, a ma? named ‘hiaster-
     son paid school taxes to Fowlerton'Consolidated School ais-
     trict No. 1. frcm the years 1911 tc 1926, inclusive. ae paid
     the taxes in good faith, and the Schcol District accepted
     them in good faith. When it WPS discovered tbz~tl&aster-
     son's property was not within the limits of the School Dis-
     trict, the ,trustees of the uistrict, .in an effort to refund
     him his taxes, excuted and delivered to him a warrant for
     the same, which was in issue in the case. The court said:

                           "The payment of the taxes by Itias-
                     terson, through a mutual mistake, on
                    property not within the Schocl District,
                    was  not  a 'voluntary payment' within the
                    .rule denying recovery for taxes paid vol-
                    untarily and withcut compulsion.    The
                     general rule is thus well stated by 61
                     C. J. 985.”

                  The court then quotes the section from Corpus
     Juris vihich has been previously quoted in this opinion.
     The court then qllotes from the case of Pederson v3. Stan-
     ley Couzt; (p:~~icusly cited) as follows:

                           "It 5-s the contention of appel-
                     -lent ",:?a';
                                under the general rule that
                     taxe3 voluntarily paid cannot be re-
Honorable T. M. Trimble, page 5 O-1266




            covered the respondent was not entA.tled
            to recover a judgment for the said
            amounts so paid to Stanley County.    rig
            are of the view that the said rule has
            no apalication to the facts of this case.
            The property of respondent was .hholly
            outside of the taxing jurisdicticn or
            taxing district of Stanley County, and
            was therefore not taxable at ell in that
            county, and the amounts so paid by re-
            spondcnt to said Stanley county were in
            fact not a tax at cll, Stanley county
            was  wholly withcut jurisdictio,n or au-
            thority to levy and collect such sums as
            a tax against the property of rospond-
            ent .?

            The court, in the same case, stated further;

                 "The fact that the taxes paid by
            @asteron - the very money paid by him
            - had been expended by appellee and was
            not in his possession when the warrant
            was issued, did not take from the trus-
            tees the poner to issue the warrant."

            As to the manner of payment of this warrant, .the
court states as follows:
                   II. . .possible appellee could not
            have paid the warrant from the state and
            county funds, but appellee had other funds
            derived from local taxes, tuition fees,
            etc. The expenditure of these funds falls
            within the provisicns of Section 2 of Ar-
            title 2827; which provides:      'Local school
            funds from district taxes, tuition fees of
            pupils not entitled to free tuition and
            other local sources may be used for the
            purposes enumerated for State and county
            fbldS,    and for purchas~ing appliances and
            supplies for the payment of insurance pre-
            miums, jnnitors;,,and other employees, for
            buying school sites, buying, building and
            repairing school houses, and for other
            purposes necessary in the conduct of the
            public schools to be determined by the
            Board of '*rustees, the accountsand
            vouchers for county district to be ap-
      ,.
-__        .




               Honorable T. M. Trimble, page 6 o-1266




                            proved by the county superintendent; pro-
                            vided, that when the State "vailable School
                            Fund in any city or district is sufficient
                            to maintain the schools thereof in any year
                            for at least eight mcnths, and leave a sur-
                            plus, such surplus may be expended for the
                            purposes mentioned herein."

                             It is the opinion of this department,, therefore,
               that the trustees of this school district may refund
               the m,o%ay collected from this taxpayer by issuing her a
               warrant drawn on the local maintenance fund collected from
               local taxes, tuition fees, etc, The mcney may not be paid
               from the State and county fundafurnished     the school dis-
               trict. In this respect, however', o~~~attention is called
               to the case of Pfluger, ,et al vs, iI ..~. Independent
                                                   utto
               School aistrict, 3!+&S.V. (2d) 632 (Court of Appeals of
               Austin), where a plea of limitations v&$Tsustained by the
               Court in a case where taxes had been paid to a school dis-
               trict on property not located within said SchooIdistrict.
               The court held that the facts in that particular case were
               such as to arouse the suspicion of the taxpayer so as to
                start the running of the two year statute of limitaticns,
               by which the taxpayer was barred in that case*

                                                  Yours very truly
                                             ATTORNEY GEKERAL OF TEXAS

                                             BY         Billy Goldberg
                                                             Assistant

               BG:FG

               APPROVED SEPTENBER .5',1939
               GERALD C. MANN
               ATTORNEY GEXERAL OF TEXAS

               APPROVED OPINIOK COMMITTEE
               BY BVVB, CHAIRMAN
