(dissenting).
First, I join, spiritually, the dissent of Justice Morgan. This dissent is not intended to disparage nor contravene his writing.
Needless to say, as the author of Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984), I find it difficult to intellectually swallow the public policy declaration to deny Bayer access to the courts of this state.1 Daugaard, though assailed in a dissent in this Court, was later approved in Zacher v. Budd Co., 396 N.W.2d 122 (S.D.1986). See Salem Sch. Dist. v. Puetz Constr., 353 N.W.2d 51 (S.D.1984). See also Wright v. International Harvester Co., 736 F.2d 483 (8th Cir.1984) (per curiam). Pridefully, it is called to the attention of the reader that the words of Daugaard were approved by the Supreme Court of Arizona in Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984) (en banc), and the Supreme Court of Utah in Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985). Zacher, 396 N.W.2d at 131.
Justice Morgan notes that these taxes were unconstitutionally exacted by the Department of Revenue. I agree. In this regard, I wish to point out to the reader my dissent in Bayer II, 378 N.W.2d 223, 225 (S.D.1985). I was the lone dissenter in Bayer II. Four captions containing four different subjects were highlighted in my dissent as to why the State of South Dakota was so wrong in its exaction of this money. One of those concepts was “UNCONSTITUTIONAL CONVICTION CANNOT BEGET CONSTITUTIONAL TAX MONEY.” Id.
Referring to my dissent in Bayer II, 378 N.W.2d at 225, I wish to call State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976), to the attention, once again, of students of the law. In sum, the case holding is that a fine and costs paid by an individual, convicted under an unconstitutional statute, constitutes a violation of taking one’s property without due process of the Fifth Amendment. Here, glaringly, Bayer being denied access to the courts, when he seeks a refund of a sales tax paid pursuant to a plea agreement on an activity not subject *132to a sales tax under the South Dakota Constitution, amounts to a taking of his property without due process. Failing to return a fine and costs collected from any individual pursuant to an unconstitutional conviction, is a violation of the Fifth Amendment. United States v. Summa, 362 F.Supp. 1177 (D.Conn.1972); United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff'd, 478 F.2d 835 (5th Cir.1973); Ex Parte McCurley, 412 So.2d 1236 (Ala.1982), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1301; People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975).
As regards “possibly criminal activity,” referred to in the Bayer III decision, 400 N.W.2d at 886, emphasized in Justice Morgan’s dissent, I would like to point out that the only criminal action filed against Bayer was for failure to file a sales tax return. Said criminal conviction was vacated on August 13,1984, as a direct consequence of Bayer I.
Particularly disturbing to this author is the “public policy” argument for still another reason: Potential sales taxes due must be paid under the scheme of SDCL ch. 10-55A. SDCL 10-55A-3 mandates a taxpayer to pay taxes when due and thereafter seek recovery as provided in SDCL ch. 10-55A. The statute is rough and tough in that it precludes the Court System from either restricting or delaying the collection of payment of sales tax. The message is clear: Pay the potential tax, Mr. Taxpayer, and then file a claim with the Department for a refund. SDCL 10-55A-2. Bayer entered into a Plea Agreement, approved by the court, and followed the terms of the Plea Agreement and paid the sales tax allegedly owed to the State because of the criminal conviction. The majority continues to misunderstand and misapprehend and recognize this salient fact: His conviction has been vacated. Therefore, when this Court relies upon “public policy” to preclude Bayer from recovering a sales tax refund, the decision will ring out a message to other taxpayers to withhold payment of a tax if there is any question at all concerning the constitutionality of the taxed activity. Bayer had a tremendous dilemma: He could pay the sales tax in question via a Court Order as reflected in an instrument “Terms of Plea and Appropriate Disposition,” and thereby be denied access to the courts to recover the taxes paid, or to simply not pay the sales tax at all and then be incarcerated behind bars.
Let there be no doubt that Bayer was under duress. He was actually confined contrary to the South Dakota Constitution for failure to file a retail and service tax return. Duress is defined under SDCL 53-4-3. Five definitions of duress are specified. Taxes paid under duress or coercion are not subject.to the three-year statute of limitations specified in SDCL 10-45-53.2 Bayer was unable to petition for a refund because of the Magistrate Court’s sentence of July 13, 1981. He labored under this disability until the Magistrate Court vacated the Judgment of Conviction on August 13, 1984. Bayer did timely file this action within three years from August 13, 1984. An operation of a statute of limitations does not accrue until the time that the duress ceases to exist. See Pierce v. Estate of Haverlah, 428 S.W.2d 422 (Tex.Civ.App.1968). In my opinion, Bayer’s cause of action did not accrue until the Supreme Court of this State rendered its decision in Bayer v. Johnson, 349 N.W.2d 447, on June 13, 1984.
It would appear that the $46,407.56 in sales tax was paid under coercion and I would reverse the trial court with a remand to the Department of Revenue to pay Bayer his money which he was coerced into paying.
. Article VI, § 20, of the South Dakota Constitution manifests the intention of our forefathers that this state’s courts shall remain open for an injury done to a man’s or woman’s property, person, reputation.
. SDCL 10-45-53 was repealed by 1986 S.D. Sess. Laws ch. 111, § 30.