#### The President and Directors of Georgetown College *vs.*The District of Columbia.

Law. No. 19,123.

Decided March 3, 1879.

1. Where a party pays a tax with a full knowledge that it is illegal, without any attempt on the part of the municipal authorities to enforce its collection, aside from making the assessment, such payment must be deemed voluntary and the money cannot be recovered back, unless required by act of Congress ; and the fact that the party at the time of making the payment serves a written protest does not make the payment involuntary.

2. Where Congress passed an act to refund the amount of a tax which was paid voluntarily, and says nothing about interest, the party is not entitled to demand interest.

STATEMENT OE THE CASE.

This was an action to recover the sum of thirty thousand dollars, which had been paid by the plaintiff for taxes assessed upon their property in Georgetown, for the years ending June 30, 1873, down to and including the half year ending •June 30, 1878. These taxes were paid under a protest that the property upon which they were assessed was exempt from taxation, and that the college authorities intended to institute suit immediately to recover the amount so paid. Pendiug the suit, Congress passed an act for a permanent government of the District, June 11, 1878, the 14th section of which enacts, “that the term ‘school houses,’ in the act of June 17, 1870, chapter 30, was intended to embrace all collegiate establishments actually used for educational purposes, and not for private gain ; and that all taxes heretofore imposed upon such establishments in the District of Columbia since the date of said act are hereby remitted ; and where the same, or any part thereof, has been paid, the sums so paid shall be refunded; but if any portion of said building, house or ground, in terms excepted, is used to secure a rent or income, or for any business purpose, such portion of the same, or a sum equal in value to such portion, shall be taxed.”

The act of June 17,1870, explained by this section, was *44in operation during the years when the taxes were assessed upon the plaintiff’s property, and so far as concerns this case, it provided that “ all churches and school-houses, and all buildings, grounds, and property appurtenant thereto and used in connection therewith, in the District, shall be exempt from any and all taxes or assessments, national or municipal.”

On the passage of this act, the officers of the District of Columbia, October 2, 1878, paid back to the plaintiff' the whole sum which the District had received for these taxes without interest. The plaintiff claimed to be entitled to interest on the amount for the.time intervening the payment and the refunding of the money. Thereupon, the following stipulations were entered into by the counsel of the respective parties:

“ Whereas, in pursuance of an act of Congress of the United States, approved June 11, A. D. 1878, the Commissioners of the District of Columbia have offered to pay back to the president and directors of Georgetown College the sum of $80,909.27, paid by the latter as taxes under protest on February 2, A. D. 1878, but have refused to pay interest thereon, although the college claims interest; and, whereas, the college has agreed to receive the said sum under protest, reserving the right to prosecute its claim for interest, it is agreed this 2d day of October, A. D. 1878, that the question of the liability of the District of Columbia for interest, as claimed by the college, be submitted to the court in the above entitled cause, by plea of payment *'puis darien continuance,*or otherwise, as may be deemed proper to bring the question of such liability up for consideration. And it is further agreed, that said cause be now brought- on for hearing on said question of interest, the same being now the only issue in the cause.”

It being conceded for the purposes of the present case, that the plaintiff was exempted from taxation, and that the District has paid back the precise amount paid by the college, the question submitted to the court is, whether, under the law and all the circumstances of the case, the *45plaintiff is entitled to demand and receive interest on that amount from the District from February 2,1878, to October 2,1878 ; and thereupon the court shall enter judgment.

The tax was paid under these circumstances. The college desired to effect a loan upon the security of this property, but the parties about to advance the money refused to make the investment unless the title was relieved from these assessments. Thereupon, the taxes were paid under protest, as already mentioned. The District had taken no steps to enforce the collection of the taxes aside from making the assesment, but entered into stipulations to expedite the legal proceedings necessary to obtain a judicial determination of the legality of the tax.

R. T. Merrick and M. F. Morris for plaintiff.

A. G. Riddle and Francis Miller for the District of Columbia.

Mr. Justice Mac Arthur

delivered the opinion of the COUl’t.

We think this case is ruled by the late decision of the Suppreme Court, in the Union Pacific R. R. Co. v. Commissioners of County of Dodge, in the State of Nebraska, not yet reported, but the printed opinion was referred to in argument and furnished to the court.*

There the county authorities had levied a tax upon land-grant lands belonging to the railroad, and there was some dispute about whether they were taxable. The assessments were made in 1871 and 1872, and a warrant was issued for their collection, but no steps had been taken to enforce the warrant. The railroad company went to the office of the collector and paid the taxes of 1871, in May, 1872, and the taxes of 1872, in May, 1873. They also protested that the lands were not subject to taxation, and that they intended to institute an action at law to recover the amount which they had paid. The Supreme Court held that to be a volun*46tary payment notwithstanding the protest of the company, and that the action could not be maintained. Chief Justice Waite, who delivered the opinion of the court, observes : *“*Under such circumstances we cannot hold that the payment was compulsory in such a sense as to give a right to the present action.”'

' It will be seen from this decision that it is only when the tax has been paid compulsorily that a protest will avail a party. There are a number of cases decided where goods have been released from import duties, and where the importer has made his protest and given notice that he will commence an action to recover the amount, but these actions are maintained on the ground of duress, for it is only by payment of the duties that the goods were released. Elliott *vs.*Swartwout, 10 Pet., 137; Bond *vs.*Hoyt, 13 Pet., 236; Philadelphia *vs.*Collector, 5 Wall., 730; Collector *vs.*Hubbard, 12 Wall., 13; Erskine *vs.*Van Arsdale, 15 Wall., 75.

The counsel for complainant, in his brief, refers to the case of Erskine *vs.*Van Arsdale, 15 Wall., 75, in which the party instituted a suit to recover a tax collected under the internal revenue act for duties imposed upon some articles of iron, and it was there held that the cause was maintainable and the party entitled to recover interest.

It is remarked in the opinion already, cited, that Erskine *vs.*Van Arsdale is like the cases that have preceded it, where the goods have been released upon the payment of the taxes. It is impossible for us to distinguish the case now before us from that of the Pacific Railroad Co. *vs.*The County of Dodge. The doctrine of that decision may be briefly stated to be, that where’ a party pays a tax with a full knowledge of the facts which render it illegal, without any attempt having been made by the municipal authorities to enforce its collection, such payment must be deemed voluntary, and cannot be recovered back, and the fact that the party, at the time of making the payment, serves a written protest, does not make the payment involuntary. It follows, that if there is no liability for the principal, there can be no valid claim for interest.

*47The plaintiffs aver in their declaration that the taxes were paid under coercion, but the agreed statement of facts shows that duress was out of the question ; that the District collector received the money at the solicitation of the college authorities, and to relieve them from an embarrassment growing out of the assessment. It does not appear that a single step had been taken towards enforcing this tax. It was urged in argument by complainant’s counsel that there is a stipulation by which coercion, or something very like it, is admitted. The stipulation is very brief, and is to the effect that the plaintiff was exempted from taxation, and that the District has paid back the precise amount paid by the college.

This merely stipulates. that the property was to be considered as exempt from taxation for the purposes of this case, but it does not stipulate that the District had taken any steps at all to compel the payment of the tax, and the facts are in the very teeth of any such supposition as that.

Dpon the whole, we think that it is impossible to maintain this action, in view of the express decision referred to. There must be judgment, therefore, in favor of the defendant, upon the stipulation of the parties.

*

 Railroad Co. *vs.*Commissioners, 98 U. S., 541.