explaining that “[w]here the levy of an illegal tax may become a cloud upon title to real estate, payment of the tax to avoid the cloud or to avoid the imposition of substantial burdens upon property rights of the owner is not a voluntary payment”
How later courts described this case
- explaining that “[w]here the levy of an illegal tax may become a cloud upon title to real estate, payment of the tax to avoid the cloud or to avoid the imposition of substantial burdens upon property rights of the owner is not a voluntary payment”
- two factors are given primary consideration, viz., a contract of hire and a determination as to whose work is being done
Written by the judges who cited it.
The opinion
Petition for rehearing denied Nov. 17, 1931.
Per Curiam.
In denying the petition for a rehearing in this case, we deem it of importance to state that we agree with the correctness of the appellants’ contention that the mere payment of a tax on lands to prevent the
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sale of such lands at a tax sale, and to prevent the issuance of a tax deed thereon, is not such compulsion or duress as to make the payment of the tax under such circumstances involuntary, so that the amount of money paid without protest can be recovered back (Lamborn v. County Commrs., 97 U. S. 181 ), but this rule is subject to an exception, as in the present case, where the exaction is an illegal special benefit assessment in the form of a tax and its collection is so tied in with other admittedly legal governmental taxes, that the taxpayer has no choice in the matter of payment, but is compelled to pay the illegal special benefit assessment at the time of the paying of other taxes in order to pay his ordinary taxes for governmental purposes.
There is a recognized legal distinction between a
tax
in its true sense, and a special benefit assessment in the form of a tax. The latter is only permissible when based on a determination of some kind of benefit to the property assessed, even though it be in the form of an ad valorem tax levied on all the property in a district deemed to have been specially benefited as a whole. Jinkins v. Entzminger, 102 Fla. 167 , 135 So. Rep. 785 .
Rehearing denied.
. Whitfield, P.J., and Teeeell and Davis, J.J., concur.
Bufoed, C.J., and Ellis and Bbown, J. J., concur in the opinion and judgment.