Bruce, J.
(after stating the facts as above). The only question that is presented to us by the briefs of counsel for determination is whether tbe plaintiff was precluded from recovering by reason of the fact that it made a voluntary payment.
We are satisfied that the payment was not so far voluntary as to preclude a recovery. This is not a case where the illegal portion of tbe taxes was paid in order to obtain a statutory rebate on tbat portion of tbe tax which was paid under protest, and this even if we can look upon tbe penalty as a rebate, but to escape tbe penalty on tbat portion and tbe far larger portion which was admitted to be valid and which the plaintiff was ready and willing to pay. The county auditor and the county commissioners bad refused to make any corrections, and the county treasurer bad also refused. The treasurer also refused to accept any less than the amount charged on bis books against the railway company, and as a matter of fact bad no authority to receive any less. It is perfectly evident that the railway company did all that it could to obtain the correction, and everything that was possible in the way of a protest. The question, therefore, is, should it have tendered the amount which it admitted was due, and, if not accepted, deposited it in the bank, or should it have waited before paying the amount until the claim bad been turned over to tbe sheriff for collection?
Was it necessary, in short, that it should wait until its property was actually being seized and distrained before it could claim tbat it paid not voluntarily but under duress?
If it bad waited until the distraint it is quite clear that it would not have saved the penalty upon the large amount of taxes which it was willing to pay and which were legally due. It is perfectly clear that the plaintiff could not have enjoined the distraint or the collection of the taxes, as any such effort would have been met by the answer that there was a remedy at law to recover back the amount illegally collected. Farrington v. New England Invest. Co. 1 N. D. 118, 45 N. W. 191; Arkansas Bldg. & L. Asso. v. Madden, 175 U. S. 269, 44 L. ed. 159, 20 Sup. Ct. Rep. 119; Shaffner v. Young, 10 N. D. 245, 86 N. W. 733; Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County, 11 [158]*158N. D. 107, 90 N. W. 260; Chicago & N. W. R. Co. v. Rolfson, 23 S. D. 405, 122 N. W. 343; Garr, S. & Co. v. Shannon, 223 U. S. 468, 56 L. ed. 510, 32 Sup. Ct. Rep. 236; Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep. 216, Ann. Cas. 1913C, 1050; Bismarck Water Supply Co. v. Barnes, 30 N. D. 555, 153 N. W. 454.
It is also now well established, we believe, that, a payment to avoid a penalty which will be incurred upon the nonpayment of taxes, which cannot be paid or at any rate will not be received without the payment of an illegal part, is a payment under compulsion. Maxwell v. Griswold, 10 How. 242, 13 L. ed. 405; Gaar, S. & Co. v. Shannon, 223 U. S. 470, 56 L. ed. 512, 32 Sup. Ct. Rep. 236; Robertson v. Frank Bros. Co. 132 U. S. 17, 33 L. ed. 236, 15 Sup. Ct. Rep. 5; Swift Co. v. United States, 111 U. S. 22, 28 L. ed. 341, 4 Sup. Ct. Rep. 244; Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep. 216, Ann. Cas. 1913C, 1050; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. ed. 1013, 29 Sup. Ct. Rep. 671.
Nor do we believe that plaintiff was compelled to wait until the danger of seizure was immediate or to tender and deposit the amount actually due. The North Dakota statute (chapter 300 of the Laws of 1911, amending § 1554, Eev. Codes 1905, being § 2166, Compiled Laws of 1913) requires the county treasurer to deliver a list of the delinquent taxes to the sheriff on the first day of October. It requires the sheriff to immediately proceed to collect such taxes and to distrain and sell the property upon which the taxes are delinquent at public vendue. Neither the sheriff nor the treasurer has the authority to cancel or rebate illegal taxes. The duty of the sheriff is peremptory and immediate. It is certainly a wise policy to encourage the payment under protest of disputed taxes, rather than withholding from the county the amount or waiting for the seizure to be actually made or threatened. “The proper administration of the fiscal affairs of the government,” says the circuit court of appeals in Harold v. Kahn, 86 C. C. A. 598, 159 Fed. 608, “require that the payment of taxes should not be delayed by disputes as to their legality, but that the taxes should first be paid and all questions in regard to them be determined in suits brought for their refunding. It is a wise policy, therefore, that en[159]*159courages the payment under protest.” Again, in the case of Kansas P. R. Co. v. Wyandotte County, 16 Kan. 587, we find the following: “Rut here no warrant had issued. None could legally issue for seventeen days, nor could the company’s property be in any manner disturbed before that time, so that there was no danger of instantaneous seizure. On the other hand, there was no further inquiry to be made-by any officer or tribunal. The amount of the tax was fixed beyond any opportunity for review. There was no discretion with anyone as to-whether a warrant should or should not issue, a levy should or should not be made. The machinery for adjusting the qmount of the tax had completed its work and was at rest; only the machinery for collecting was in motion, and it moved with the certainty of fate and the rapidity of time to the finality of seizure and sale. Where the law is imperative, and, giving no discretion, commands the issue of a warrant at a definite time, and the levy under that warrant within a fixed time thereafter, must an individual wait until the last moment, and pay only just as the officer is seizing his property, or may he assume that the officers of the law will obey its precepts, and when all opportunity for consideration, correction, and change has passed, all discretion ended, and the tax roll is in the treasurer’s hands, waiting only the lapse-of a few days to ripen into a warrant and seizure, may he not then pay to the treasurer, protesting against the legality, and asserting his intention to contest? Does he not then pay to prevent an immediate-seizure, one that is certainly and presently impending?” See also Atchison, T. & S. F. R. Co. v. Atchison County, 47 Kan. 722, 28 Pac. 999; Atchison, T. & S. F. R. Co. v. Atchison, 47 Kan. 712, 28 Pac. 1000; Wyandotte County v. Kansas City, S. & M. R. Co. 4 Kan. App. 772, 46 Pac. 1013; Rumford Chemical Works v. Ray, 19 R. I. 456, 34 Atl. 814; Fourth Nat. Bank v. Greenville, 91 S. C. 81, 74 S. E. 126.
The exaction before us was admittedly illegal. If the county retains-it at all it will simply be retaining money to which it has. no right. The case, indeed, is one to which' the language of Mr. Justice Watts of the supreme court of South Carolina, in the case of Fourth Nat. Bank v. Greenville, 91 S. C. 81, 74 S. E.
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Bruce, J.
(after stating the facts as above). The only question that is presented to us by the briefs of counsel for determination is whether tbe plaintiff was precluded from recovering by reason of the fact that it made a voluntary payment.
We are satisfied that the payment was not so far voluntary as to preclude a recovery. This is not a case where the illegal portion of tbe taxes was paid in order to obtain a statutory rebate on tbat portion of tbe tax which was paid under protest, and this even if we can look upon tbe penalty as a rebate, but to escape tbe penalty on tbat portion and tbe far larger portion which was admitted to be valid and which the plaintiff was ready and willing to pay. The county auditor and the county commissioners bad refused to make any corrections, and the county treasurer bad also refused. The treasurer also refused to accept any less than the amount charged on bis books against the railway company, and as a matter of fact bad no authority to receive any less. It is perfectly evident that the railway company did all that it could to obtain the correction, and everything that was possible in the way of a protest. The question, therefore, is, should it have tendered the amount which it admitted was due, and, if not accepted, deposited it in the bank, or should it have waited before paying the amount until the claim bad been turned over to tbe sheriff for collection?
Was it necessary, in short, that it should wait until its property was actually being seized and distrained before it could claim tbat it paid not voluntarily but under duress?
If it bad waited until the distraint it is quite clear that it would not have saved the penalty upon the large amount of taxes which it was willing to pay and which were legally due. It is perfectly clear that the plaintiff could not have enjoined the distraint or the collection of the taxes, as any such effort would have been met by the answer that there was a remedy at law to recover back the amount illegally collected. Farrington v. New England Invest. Co. 1 N. D. 118, 45 N. W. 191; Arkansas Bldg. & L. Asso. v. Madden, 175 U. S. 269, 44 L. ed. 159, 20 Sup. Ct. Rep. 119; Shaffner v. Young, 10 N. D. 245, 86 N. W. 733; Minneapolis, St. P. & S. Ste. M. R. Co. v. Dickey County, 11 [158]*158N. D. 107, 90 N. W. 260; Chicago & N. W. R. Co. v. Rolfson, 23 S. D. 405, 122 N. W. 343; Garr, S. & Co. v. Shannon, 223 U. S. 468, 56 L. ed. 510, 32 Sup. Ct. Rep. 236; Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep. 216, Ann. Cas. 1913C, 1050; Bismarck Water Supply Co. v. Barnes, 30 N. D. 555, 153 N. W. 454.
It is also now well established, we believe, that, a payment to avoid a penalty which will be incurred upon the nonpayment of taxes, which cannot be paid or at any rate will not be received without the payment of an illegal part, is a payment under compulsion. Maxwell v. Griswold, 10 How. 242, 13 L. ed. 405; Gaar, S. & Co. v. Shannon, 223 U. S. 470, 56 L. ed. 512, 32 Sup. Ct. Rep. 236; Robertson v. Frank Bros. Co. 132 U. S. 17, 33 L. ed. 236, 15 Sup. Ct. Rep. 5; Swift Co. v. United States, 111 U. S. 22, 28 L. ed. 341, 4 Sup. Ct. Rep. 244; Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 56 L. ed. 436, 32 Sup. Ct. Rep. 216, Ann. Cas. 1913C, 1050; Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 53 L. ed. 1013, 29 Sup. Ct. Rep. 671.
Nor do we believe that plaintiff was compelled to wait until the danger of seizure was immediate or to tender and deposit the amount actually due. The North Dakota statute (chapter 300 of the Laws of 1911, amending § 1554, Eev. Codes 1905, being § 2166, Compiled Laws of 1913) requires the county treasurer to deliver a list of the delinquent taxes to the sheriff on the first day of October. It requires the sheriff to immediately proceed to collect such taxes and to distrain and sell the property upon which the taxes are delinquent at public vendue. Neither the sheriff nor the treasurer has the authority to cancel or rebate illegal taxes. The duty of the sheriff is peremptory and immediate. It is certainly a wise policy to encourage the payment under protest of disputed taxes, rather than withholding from the county the amount or waiting for the seizure to be actually made or threatened. “The proper administration of the fiscal affairs of the government,” says the circuit court of appeals in Harold v. Kahn, 86 C. C. A. 598, 159 Fed. 608, “require that the payment of taxes should not be delayed by disputes as to their legality, but that the taxes should first be paid and all questions in regard to them be determined in suits brought for their refunding. It is a wise policy, therefore, that en[159]*159courages the payment under protest.” Again, in the case of Kansas P. R. Co. v. Wyandotte County, 16 Kan. 587, we find the following: “Rut here no warrant had issued. None could legally issue for seventeen days, nor could the company’s property be in any manner disturbed before that time, so that there was no danger of instantaneous seizure. On the other hand, there was no further inquiry to be made-by any officer or tribunal. The amount of the tax was fixed beyond any opportunity for review. There was no discretion with anyone as to-whether a warrant should or should not issue, a levy should or should not be made. The machinery for adjusting the qmount of the tax had completed its work and was at rest; only the machinery for collecting was in motion, and it moved with the certainty of fate and the rapidity of time to the finality of seizure and sale. Where the law is imperative, and, giving no discretion, commands the issue of a warrant at a definite time, and the levy under that warrant within a fixed time thereafter, must an individual wait until the last moment, and pay only just as the officer is seizing his property, or may he assume that the officers of the law will obey its precepts, and when all opportunity for consideration, correction, and change has passed, all discretion ended, and the tax roll is in the treasurer’s hands, waiting only the lapse-of a few days to ripen into a warrant and seizure, may he not then pay to the treasurer, protesting against the legality, and asserting his intention to contest? Does he not then pay to prevent an immediate-seizure, one that is certainly and presently impending?” See also Atchison, T. & S. F. R. Co. v. Atchison County, 47 Kan. 722, 28 Pac. 999; Atchison, T. & S. F. R. Co. v. Atchison, 47 Kan. 712, 28 Pac. 1000; Wyandotte County v. Kansas City, S. & M. R. Co. 4 Kan. App. 772, 46 Pac. 1013; Rumford Chemical Works v. Ray, 19 R. I. 456, 34 Atl. 814; Fourth Nat. Bank v. Greenville, 91 S. C. 81, 74 S. E. 126.
The exaction before us was admittedly illegal. If the county retains-it at all it will simply be retaining money to which it has. no right. The case, indeed, is one to which' the language of Mr. Justice Watts of the supreme court of South Carolina, in the case of Fourth Nat. Bank v. Greenville, 91 S. C. 81, 74 S. E. 126, is apt and pertinent: “It was,”' that learned judge said, “not a cheerful and voluntary payment on the-part of the plaintiff, but more in the nature of extortion or a holdup-tinder forms of law. It paid under protest, as under the laws it could [160]*160not stay the collection of taxes by application to the courts. In order to prevent the penalty that would have been added, and the issuance of execution to enforce the collection, the plaintiff exercised the remedy given it when an illegal tax was attempted to be exacted, paid it under protest, and brought suit at law.”
We have carefully read the cases cited by counsel for appellant, but the reading of none of them tends to shake our confidence in the correctness of the conclusions that we have arrived at. The cases of Farrington v. New England Invest. Co. 1 N. D. 102, 45 N. W. 191; Bode v. New England Invest. Co. 1 N. D. 121, 45 N. W. 197; Douglas v. Fargo, 13 N. D. 467, 101 N. W. 919; and Orlando v. Equitable Bldg. & L. Asso. 45 Fla. 507, 33 So. 986, were not actions to recover taxes illegally exacted, but to redeem from or set aside tax sales. They were equitable actions, and the doctrine was merely upheld that one who seeks equity must do equity and that the plaintiff in such actions must tender or offer to pay the amount of the legal tax as a condition precedent to obtaining relief. The cases are not in any way parallel.
The judgment of the District Court is affirmed.