E.S. Wilson is the assignee of three separate claims against Weber County, one each from the estates of Maule, Scowcroft and Stevens. The claims are for the refund of excessive inventory filing fees paid to the clerk of the county under and pursuant to section 28-2-2, R.S.U. 1933. Each estate paid a sum of money, based upon the estate valuation, and in excess of $10, the minimum fee required. We held in the case of Smith v. CarbonCounty, 90 Utah 560, 63 P.2d 259, 108 A.L.R. 513, also Id.,95 Utah 340, 81 P.2d 370, that the requirements of that section, in excess of the $10, were unconstitutional and void.
Mr. Wilson filed his complaint against Weber County on April 4, 1939. It is in three causes af action, one for each claim in the order they are set out above. The filing fees were not paid under protest — at least there is no allegation of payment under protest; and the payments were made on the following dates: Maule estate, July 1, 1935; Scowcroft estate, August 27, 1931; and Stevens estate, April 4, 1933. The appeal comes to us upon rulings upon the pleadings and arises in this way: Weber County filed a general demurrer to each cause of action, and also demurrer to each upon the grounds of the bar of the statute of limitations. The lower court overruled each general demurrer, and overruled the demurrer upon the statute of limitations as to the first cause of action (the Maule estate) but sustained that demurrer to the second two causes. Weber County did not answer the first cause of action so the case ended with a
default judgment against the county on that cause, and a dismissal of the other two causes of action. Weber County appeals from the lower court's overruling of the general demurrer to that first cause of action and the default judgment; and Mr. Wilson cross-appeals from the sustaining of the demurrer upon the statute of limitations to the second two causes of action, and of course their dismissal upon that ground. In each cause of action there is an allegation of a demand for the refund of the excessive payment. In the Maule estate that demand was made September 1, 1938; in the Scowcroft estate, it was made September 1, 1938; and in the Stevens estate, March 6, 1939.
The issues upon this appeal are these: (1) Weber County contends that the first cause of action is defective in that there is no allegation of payment of the excess fee under protest as required by Sec. 80-11-11, R.S.U. 1933; (2) that it is defective in that there is no allegation that a claim was filed with the county within a year of the payment as required by Sec. 19-11-10, R.S.U. 1933; (3) Mr. Wilson contends that the statute of limitations begins to run against the claim only after demand has been made for the refund, which demands must be made within a reasonable time after payment; (4) and that a reasonable time is the period of the statute of limitation, which in this case is four years — Sec. 104-2-30, R.S.U. 1933 — after which he would have four years in which to file action. This contention, if correct, would bring all causes of action within time.
Sec. 80-11-11, R.S.U. 1933, is part of our revenue and taxation laws, and reads:
"In all cases of levy of taxes, licenses, or other demands for public revenue which is deemed unlawful by the party whose property is thus taxed, or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying or his legal representative may bring an action in any court of competent jurisdiction against the officer to whom said tax or license was paid, or against the state, county, municipality or other taxing
unit on whose behalf the same was collected, to recover said tax or license or any portion thereof paid under protest."
It seems to be the generally accepted doctrine that, although fees are designated "fees" in the statutes similar to ours, where the amount of the fee is governed by the valuation of the estate, they are in reality taxes. Cook County v. Fairbank etal., 222 Ill. 578, 78 N.E. 895; Chapman v. Ada County, 148 Idaho 632, 284 P. 259. We seem to have taken that view in the Smith v. Carbon County case cited above. That being the case, the provisions for the collection or refund of illegal taxes, found in our revenue and taxation laws, are applicable.
In addition to Sec. 80-11-11, R.S.U. 1933, quoted above, we have Sec. 80-10-17, R.S.U. 1933, which reads as follows.
"The board of county commissioners, upon sufficient evidence being produced that property has been erroneously or illegally assessed, may order the county treasurer to allow the taxes on that part of the property erroneously or illegally assessed to be deducted before payment of taxes. Any taxes, interest and costs paid more than once, or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the portion of such taxes, interest and costs, paid to the state or any taxing unit, must be refunded to the county, and the proper officer must draw his warrant therefor in favor of the county."
The application of these two sections has been explained in the case of Neilson v. San Pete County, 40 Utah 560,123 P. 334. Therein we said that Sec. 80-11-11, R.S.U. 1933 (then section 2684, Laws of Utah 1907), requiring a payment under protest, is applicable if the validity of the 2 particular statute in question is yet to be determined. The payment under protest is required to lay a foundation for the attack upon the statute that requires the payment. Sec. 80-10-17, R.S.U. 1933 (then Section 2642, Laws of Utah 1907), is applicable to the case when the validity of the statute requiring payment is not
in question, but is assumed to be invalid. In other words, the illegality of the payment is unquestioned.
In the present case, paragraph 4 of the cause of 3 action reads:
"4. The said sum so paid to and collected by the County Clerk of the defendant county as a fee for services is in fact and law not a fee for the performance of services, but an Ad Valorem tax attempted to be levied upon the property of the estate of said decedent, and the statute pursuant to which the same was collected by the clerk, to wit, Section 28-2-2, Revised Statutes of Utah 1933, is invalid and unconstitutional to the extent it requires payment of any fee or tax in an amount exceeding Ten Dollars ($10.00) upon the filing of the inventory and appraisement, for the services of the clerk or otherwise in said probate proceeding, because the same is in conflict with Article 13, Sections 2, 3 and 5, and Article 1, Section 24 of the Constitution of the State of Utah."
The substance of this allegation has been judicially determined to be as alleged — in the Smith v. Carbon County case, supra. Thus, this is not a case that falls under Sec. 80-11-11, R.S.U. 1933. It is true, that at the time the payment was made, the Smith v.
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E.S. Wilson is the assignee of three separate claims against Weber County, one each from the estates of Maule, Scowcroft and Stevens. The claims are for the refund of excessive inventory filing fees paid to the clerk of the county under and pursuant to section 28-2-2, R.S.U. 1933. Each estate paid a sum of money, based upon the estate valuation, and in excess of $10, the minimum fee required. We held in the case of Smith v. CarbonCounty, 90 Utah 560, 63 P.2d 259, 108 A.L.R. 513, also Id.,95 Utah 340, 81 P.2d 370, that the requirements of that section, in excess of the $10, were unconstitutional and void.
Mr. Wilson filed his complaint against Weber County on April 4, 1939. It is in three causes af action, one for each claim in the order they are set out above. The filing fees were not paid under protest — at least there is no allegation of payment under protest; and the payments were made on the following dates: Maule estate, July 1, 1935; Scowcroft estate, August 27, 1931; and Stevens estate, April 4, 1933. The appeal comes to us upon rulings upon the pleadings and arises in this way: Weber County filed a general demurrer to each cause of action, and also demurrer to each upon the grounds of the bar of the statute of limitations. The lower court overruled each general demurrer, and overruled the demurrer upon the statute of limitations as to the first cause of action (the Maule estate) but sustained that demurrer to the second two causes. Weber County did not answer the first cause of action so the case ended with a
default judgment against the county on that cause, and a dismissal of the other two causes of action. Weber County appeals from the lower court's overruling of the general demurrer to that first cause of action and the default judgment; and Mr. Wilson cross-appeals from the sustaining of the demurrer upon the statute of limitations to the second two causes of action, and of course their dismissal upon that ground. In each cause of action there is an allegation of a demand for the refund of the excessive payment. In the Maule estate that demand was made September 1, 1938; in the Scowcroft estate, it was made September 1, 1938; and in the Stevens estate, March 6, 1939.
The issues upon this appeal are these: (1) Weber County contends that the first cause of action is defective in that there is no allegation of payment of the excess fee under protest as required by Sec. 80-11-11, R.S.U. 1933; (2) that it is defective in that there is no allegation that a claim was filed with the county within a year of the payment as required by Sec. 19-11-10, R.S.U. 1933; (3) Mr. Wilson contends that the statute of limitations begins to run against the claim only after demand has been made for the refund, which demands must be made within a reasonable time after payment; (4) and that a reasonable time is the period of the statute of limitation, which in this case is four years — Sec. 104-2-30, R.S.U. 1933 — after which he would have four years in which to file action. This contention, if correct, would bring all causes of action within time.
Sec. 80-11-11, R.S.U. 1933, is part of our revenue and taxation laws, and reads:
"In all cases of levy of taxes, licenses, or other demands for public revenue which is deemed unlawful by the party whose property is thus taxed, or from whom such tax or license is demanded or enforced, such party may pay under protest such tax or license, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying or his legal representative may bring an action in any court of competent jurisdiction against the officer to whom said tax or license was paid, or against the state, county, municipality or other taxing
unit on whose behalf the same was collected, to recover said tax or license or any portion thereof paid under protest."
It seems to be the generally accepted doctrine that, although fees are designated "fees" in the statutes similar to ours, where the amount of the fee is governed by the valuation of the estate, they are in reality taxes. Cook County v. Fairbank etal., 222 Ill. 578, 78 N.E. 895; Chapman v. Ada County, 148 Idaho 632, 284 P. 259. We seem to have taken that view in the Smith v. Carbon County case cited above. That being the case, the provisions for the collection or refund of illegal taxes, found in our revenue and taxation laws, are applicable.
In addition to Sec. 80-11-11, R.S.U. 1933, quoted above, we have Sec. 80-10-17, R.S.U. 1933, which reads as follows.
"The board of county commissioners, upon sufficient evidence being produced that property has been erroneously or illegally assessed, may order the county treasurer to allow the taxes on that part of the property erroneously or illegally assessed to be deducted before payment of taxes. Any taxes, interest and costs paid more than once, or erroneously or illegally collected, may, by order of the board of county commissioners, be refunded by the county treasurer, and the portion of such taxes, interest and costs, paid to the state or any taxing unit, must be refunded to the county, and the proper officer must draw his warrant therefor in favor of the county."
The application of these two sections has been explained in the case of Neilson v. San Pete County, 40 Utah 560,123 P. 334. Therein we said that Sec. 80-11-11, R.S.U. 1933 (then section 2684, Laws of Utah 1907), requiring a payment under protest, is applicable if the validity of the 2 particular statute in question is yet to be determined. The payment under protest is required to lay a foundation for the attack upon the statute that requires the payment. Sec. 80-10-17, R.S.U. 1933 (then Section 2642, Laws of Utah 1907), is applicable to the case when the validity of the statute requiring payment is not
in question, but is assumed to be invalid. In other words, the illegality of the payment is unquestioned.
In the present case, paragraph 4 of the cause of 3 action reads:
"4. The said sum so paid to and collected by the County Clerk of the defendant county as a fee for services is in fact and law not a fee for the performance of services, but an Ad Valorem tax attempted to be levied upon the property of the estate of said decedent, and the statute pursuant to which the same was collected by the clerk, to wit, Section 28-2-2, Revised Statutes of Utah 1933, is invalid and unconstitutional to the extent it requires payment of any fee or tax in an amount exceeding Ten Dollars ($10.00) upon the filing of the inventory and appraisement, for the services of the clerk or otherwise in said probate proceeding, because the same is in conflict with Article 13, Sections 2, 3 and 5, and Article 1, Section 24 of the Constitution of the State of Utah."
The substance of this allegation has been judicially determined to be as alleged — in the Smith v. Carbon County case, supra. Thus, this is not a case that falls under Sec. 80-11-11, R.S.U. 1933. It is true, that at the time the payment was made, the Smith v. Carbon County case had not been decided, but, the invalidity of the part of the statute requiring the fee based upon the estate valuation does not date merely from the date of the decision. When determined invalid, it is invalid from its inception. Thus a payment under and pursuant to its terms is an illegal payment, the illegality of which is unquestioned; and may be recovered even though not paid under protest, as stated in Neilson v. San Pete County case. An allegation of payment under protest is not necessary under the circumstances.
As to an allegation of the filing of a claim with the county as required by Sec. 19-11-10, R.S.U. 1933, we again invite attention to the Neilson v. San Pete case, supra, which disposes of that adversely to the county's contention. 4 We shall not repeat the reasoning here.
The payment was an involuntary payment. Upon this point we invite attention not only to the Neilson case, but
also the case of Cook County v. Fairbank, supra, Sec. 181, 21 R.C.L. 157, and Trower v. City and County of 5San Francisco, 152 Cal. 479, 92 P. 1025, 15 L.R.A., N.S., 183, and note.
We are of the opinion that the lower court was right in overruling the general demurrer to the first cause of action.
In his attack upon the lower court's application of the bar of the statute of limitations to the second and third causes of action, Mr. Wilson relies considerably upon the law set out in the annotation in 32 L.R.A., N.S., 486 et seq. There is, however, a distinction between many of the cases therein cited and the present case. That distinction lies in the fact that in those cases, the retention of the money or the status of the obligor is not wrongful until the obligee has made his demand. Many of them are cases of contractual relationships that contemplate a demand to mature the obligation to act upon the part of one of the parties. In the present case, however, the obligation to return the money arises out of the fact that it was collected under a statute which has been declared void — its illegality is not contingent upon a demand. Assuming the involuntary character of the payment — and we held above that it was involuntary — there is no necessity for further action by the taxpayer to make the acquisition and retention of the money by the county wrongful.
It is true that a demand or notice to a municipal corporation is frequently required before suit upon a claim; but the principal object of such a requirement is to afford that governmental body the opportunity of settling without suit. The test is whether the performance of the 6 condition (the demand or notice) is a part of the cause of action or merely a step in the remedy. If the latter, the statute does not start to run upon the demand or notice; if the former, it starts to run upon that demand or notice. 37 C.J. 955, § 326, and cases in note 53.
In the case of Neilson v. San Pete County, this court held that it was a sufficient demand if it simply identified the taxes and the amount thereof — simply a notice to make the county aware of the money illegally collected by it, and to afford the county the opportunity to refund under and pursuant 7 to Sec. 80-10-17, R.S.U. 1933. If the county may refund taxes illegally collected, then what is the necessity for compelling the taxpayer to demand the return of those taxes upon the assumption that there is no obligation to return them until such a demand is made. In a case such as the present one we must keep in mind the very important facts that the illegality of the collection has been determined, it is an involuntary payment, the amount is liquidated, and is capable of exact proof from the records — all elements of a good cause why the money should not be retained by the county. A demand neither weakens nor strengthens the cause. Under the circumstances the most that can be said for the demand or notice is that it is part of the remedy and not part of the cause of action and it must be made or given, and the action must be filed, both within the statutory period from the date of payment.
We are of the opinion that the lower court's ruling upon the demurrers based upon the statute of limitations was correct.
The judgment of the lower court is affirmed.
Costs to respondent.
MOFFAT, C.J., and LARSON, J., concur.