People ex rel. Love v. Austin

By the Court, Crockett, J.: The facts set forth in the answer of the respondent, and in the interventions of Reese and others, are substantially the same which were involved in the cases of the Savings and Loan Society v. Austin, and Doe v. Austin, ante, p. 415. We held in those cases that upon these facts, the taxes which were sought to be enjoined were not illegal and void^ and their collection could not be restrained by injunction. For the same reason, the taxes paid by the interveners and others under protest, were not illegal, and cannot be recovered back from the respondent. The fact that some of the intervenors have already commenced their actions, and that others threaten to do so, to recover back the money, furnishes no sufficient reason why the amount collected should not be paid into the Treasury. On the facts as presented here, the actions must fail; and there is no just reason why the public revenue should be withheld to await the result of actions which must ultimately terminate in judgments for the defendant. But we are not to be understood as intimating any opinion on the point whether, under the revenue system established by the Political Code, a Tax Collector can, in any case, withhold from the Treasury taxes collected by him, on the ground that they were paid under protest, even though actions have been commenced to recover them back.

Ordered, that a peremptory writ of mandate issue, as prayed for.

Mr. Chief Justice Wallace and Mr. Justice Niles dissented.