delivered the opinion of the court:
Claimant asks for a refund in the amount of Four Dollars ($4.00) which he claims to have overpaid to the Secretary of State as an automobile license fee for 1936.
The Attorney General has moved to dismiss the claim for the reason that the complaint does not allege that the excess payment was made under protest, involuntarily or under duress or compulsion.
It is well settled that where a tax or license fee is paid voluntarily, without duress or compulsion, and not under protest, the same cannot be recovered. Where, however, such tax or license fee is paid under a mistake of fact, it is considered to have been paid involuntarily and may be recovered. However, where the tax is correctly computed by the taxing officer on the basis of an application or return filed by the applicant and the over payment is the result of inadvertence or mistake on the part of the taxpayer himself, and not on the part of the computing officer, the payment is not made under a mistake of fact within the legal meaning of those words and cannot be recovered. (Western Dairy Co. vs. State, 9 C. C. R. 498; James B. Emerick vs. State, 9 C. C. R. 510; Stotlar-Herrin Lumber Company vs. State, 9 C. C. R. 517; Fried Bell Paper Co. vs. State, 9 C. C. R. 531; Monarch Fire Insurance Co. vs. State, 9 C. C. R. 538; Oppenheimer Casing Co. vs. State, 10 C. C. R. 9.)
The complaint does not set forth a state of facts under which we have any authority to allow the award, and the motion of the Attorney General to dismiss must be susthined.
Motion to dismiss allowed. C.ase dismissed.