CARR v. CITY OF MEMPHIS, 22 F.2d 678

PER CURIAM. Complainant assigns as error the dismissal of his bill of complaint upon the ground that it fails to allege that the taxes sought to be recovered from defendant were paid under protest, or under duress, and that, having been voluntarily paid, there can be no recovery therefor. The bill of complaint "alleges payment of taxes under

chapter 790 of the Private Acts of Tennessee of 1919; that said law is void because of noneomplianee with constitutional requirements, in that the proposed law was read in the Senate only one time, and that the subject of the

chapter is not expressed in the title; that the failure to read on three different days in each house appears in the Senate and House Journals; and that payment was made in ignorance of the fact that

chapter 790 was unconstitutional. The exceptions to the general rule that money voluntarily paid under mistake of law cannot be recovered, have no applies tion to the recovery of taxes paid to the public authorities, in the absence of an authorizing statute. U. S. v. Norton, 97 U. S. 164, 24 L. Ed. 907; Railroad Co. v. Commissioners, 98 U. S. 541, 25 L. Ed. 196; Chesebrough v. U. S., 192 U. S. 253, 24 S. Ct. 262, 48 L. Ed. 432; Gulbenkian v. U. S. (C. C. A.) 175 F. 860; Cooley’s Law of Taxation (4th Ed.) §§ 1282, 1294.

The recovery of taxes and license fees voluntarily paid under unconstitutional statutes or invalid ordinances has been for many years consistently denied by the courts. See the Sonoma County Tax Case (C. C.) 13 F. 789; Board of Education v. Toennigs, 297 Ill. 469, 130 N. E. 758; Simpson v. City of New Orleans, 133 La. 384, 63 So. 57; Detroit v. Martin, 34 Mich. 170, 22 Am. Rep. 512; Prescott v. City of Memphis, 154 Tenn. 462, 285 S. W. 587, 48 A. L. R. 1378.

Appellant’s contention that, because this is not a criminal proceeding, he may rest his right of recovery upon ignorance of the unconstitutionality of the statute, is not well founded. See Barlow v. U. S., 7 Pet. 404, 410, 8 L. Ed. 728. Neither may he successfully assert ignorance. of the facts upon which the alleged uneonstitutionality is based, where these facts, as here, appear from public records. Public policy requires that he shall be presumed to know the facts so appearing. The decree of the District Court is affirmed.