Texas Attorney General Opinion: O-1266 Page: 3 of 6
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Honorable T. M. Trimble, Page 3 0-1266
A number of eases in other jurisdictions have
allowed a recovery of taxes paid on property nbt within
the taxing district even though the taxes were paid
willingly by the taxpayer who believed his property to
be within the taxing district, Churchill vs. Board of
Trustees of Highland farK- Graded School, 89 S. 4 . 122
(Court of Appeals of Kentucky); City of Indianapolis vs.
Patterson, 14 N. E. 551 (Supreme Court of Indiana);
Miller vs. City of Oneida, 272 N. Y. Supp. (Supreme Court
of New York); In re: Wing, 295 N. Y. Supp. 336; Bride-
port., Hydraulic Co. vs. City of bridgeport, 130 At. 164
(Supreme Court of Error of Connecticut); Pederson vs.
Stanle County, 149 N. ,. 422 (Supreme Court of South
Dakota) .
The 'Supreme Court of Texs in the case of the
County of Galveston vs. J. C. Gorham, 4c9 Tex. 279, first
recognized that there was a distinction between an il-
legal tax paid under a mistake of law and a legal tax
paid by the taxpayer under a mistake of fact. In answer-
ing the question of whether or not a taxpayer had the
right to recover taxes paid illegally under a mistake of
law, the. court said:
"We are of opinion that they have
not, because in such case it is volun-
tarily paid, and it, under the circum-
stances, is not contrary to good con-
science for the county to retain it. It
was voluntary, because it was without
objection paid under a mistake of law,
if it was illegal, and there was no mis-
take of fact inpaying it, and no deceit,
fraud, or compulsion used in collecting
it, or in causing it. to be paid, on the
part of the county or of any of its of-
ficers, that prevented the will of the
parties paying it from being freely ex-
secised in doing the act."
The court further said:
"When money is paid under a mutual
mistake of law, the mistake of law, in
and of itself, is no ground for recover-
ing it back."
'A mistake of fact on the part of
one ,ho pays, and deceit or fraud and
compulsion on the part of one who re-
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-1266, text, August 10, 1939; (https://texashistory.unt.edu/ark:/67531/metapth258448/m1/3/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.