dissenting.
It is my belief that the whole discussion by the majority is on entirely too ’technical grounds. It was evidently the purpose of the legislature to give a remedy in all cases of unjust taxation. To prevent the expensive and long drawn out remedy by injunction, by which the revenues of the state could be tied up, it provided that where a tax, or any *104part thereof, was claimed to be illegal, the person against whom the levy was made could pay under protest, the treasurer holding the part claimed to be illegal until within the short time named in the statute; the one paying the same to have the benefit of a speedy and effective remedy at law for testing the question involved, and to recover back his money held by the treasurer, if any should be found to have been illegally demanded. It was never the intention of the legislature to set a trap by which the citizen could be robbed, yielding him no remedy, or, if one is given, to hedge it about with technicalities of procedure to such an extent as to render the protection of his rights uncertain and insecure. The holding calls to mind the ancient rule of pleading which required the plaintiff to name his case. If he gave it a wrong name, no matter what his facts nor how meritorious his demand, he was forever undone, so far as that case was concerned. I do not believe the legislature ever intended to limit the remedies of a person against whom an illegal tax was charged in any such way as is held in the majority opinion. Plaintiff’s “cause of action,” if he has one, consists of being wrongfully compelled to pay a tax upon property which the demurrer admits he did not have nor own, and which he did not return for taxation. If the petition is true, he is entitled to relief. The construction given to the statute is, I think, too technical and narrow, and does not give effect to the intention of the legislature. To my mind a more liberal construction should be adopted.
Fawcett, J., concurs in the above dissent.