ON SUGGESTION OF ERROR. The appellant has filed a suggestion of error in this cause, in which he points out that in the original opinion we erroneously quoted and discussed chapter 195, Laws of 1926 (section 8273, Hemingway's 1927 Code), as being the statute upon which he relied to relieve him of the necessity of showing an involuntary payment of taxes in order to be entitled to recover the same by a suit against the county, while as a matter of fact he relied upon a similar statute appearing as chapter 196, Laws of 1926 (section 8270, Hemingway's 1927 Code).
Chapter 196, Laws 1926 (section 8270, Hemingway's 1927 Code), provides, in part, that: "The auditor of public accounts is hereby authorized and required to make a careful investigation of all claims presented for moneys paid for ad valorem or privilege taxes not due, . . . or if he shall find that any taxes or moneys have been, or may hereafter be, erroneously paid therefor into the treasury of the state, county, or levee boards, he shall audit such claims against each separate fund in proportion to the amount paid over to such fund in each case, and he shall submit such audited claim with the voucher and evidence on which such claim is based, to the attorney-general for his inspection and approval, and if the attorney-general be of the opinion that such claims should be paid he shall approve the same, and the auditor shall thereupon file such voucher and other papers necessary in each case, in his office, as a voucher, and issue his warrant on the state treasury in favor of the claimant, for the amount of purchase-money or taxes *Page 235 erroneously paid into the state treasury, and the auditor shall audit the amount of taxes paid the county and levee boards, as the case may be, and shall certify the amounts found to be due to the clerk of the board of supervisors and secretary of the levee board, and the said board of supervisors, or levee board, shall cause the warrant to be issued on the treasurer of the county, or levee board, in favor of the claimant, as certified by the auditor of public accounts, as the case may be, . . . provided, that it shall not be necessary in order to authorize such refunds that the tax payment was made under protest or because of coercive measures taken on the part of the collecting officers. . . ."
Chapter 195, Laws of 1926 (section 8273, Hemingway's 1927 Code), deals with privilege taxes erroneously paid into the state treasury, and chapter 196, Laws of 1926 (section 8270, Hemingway's 1927 Code), deals with both ad valorem and privilege taxes not due and erroneously paid into the treasury of the state, county, or levee board, and the methods provided by these two statutes for obtaining refunds of taxes erroneously paid are practically the same, and neither of them relieves a claimant of the necessity of showing an involuntary payment, or payment under protest, in the event he elects to proceed by direct action against the county to recover taxes alleged to have been erroneously paid. The proviso in each of these sections is that it shall not be necessary that the tax payment be made under protest to authorize such refunds, that is, refunds made upon, and as a result of, an audit and certificate of the auditor of public accounts, approved by the attorney-general; and this provision of the statute has no application to direct suits against the county for taxes erroneously paid into the county treasury. If, since the enactment of chapter 196, Laws of 1926 (section 8270, Hemingway's 1927 Code), a suit can be maintained against the county for a refund of taxes erroneously paid, which we do not decide, it can only be maintained upon a showing that the *Page 236 payment was involuntary. The suggestion of error will therefore be overruled.
Suggestion of error overruled.