This is an action against the County of Dillon and the Probate Judge and Treasurer thereof for money had and received. It is claimed that plaintiff was unlawfully required *145to pay $4.00 for a marriage license, although the proper fee was only $1.00. Recovery is sought for the difference of $3.00. The case is here on appeal from an order striking out, as sham and' irrelevant, the answer of the County of Dillon and ¶ its Treasurer and awarding judgment for the plaintiff on the pléadings.
It is alleged in the complaint that on July 29, 1950, plaintiff and Lenore Cummings,' both residents of Dillon County, applied to defendant W. E. Allen, as Probate Judge, for a marriage licensej which was regularly issued on the following day and immediately thereafter the said Allen, acting in the capacity of Notary Public performed the marriage ceremony and delivered to the parties the usual certificate; that Section 8558 of the 1942 Code fixes a fee of $1.00 for a marriage license but the Probate Judge demanded and collected from the plaintiff the sum of $4.00, claiming that this was the proper'charge under a special act relating to Dillon County, approved February 5, 1948, 45 St. at L. 1612; that the fee so collected was in due course turned over to the County Treasurer; and that $3.00 thereof was wrongfully collected and is now unlawfully held by the County of Dillon. It is further alleged that the act under which said amount was exacted is unconstitutional because (1) it is special legislation of the sort prohibited by Article 3, Section 34, of the Constitution, and (2) denies to the plaintiff the constitutional guaranty of the equal protection of the laws. Paragraph 7 of the complaint is as follows :
“That since the plaintiff could not obtain a marriage license otherwise, on July 30, 1950, he paid under protest to W. E. Allen, Judge of Probate of the County of Dillon, four dollars ($4.00), the sum demanded, and received for such payments a receipt reading as follows:
*146“ ‘Office of Probate Court
“ ‘Dillon County
“ ‘Walker E. Allen, Probate Judge
“ ‘Dillon, S. C.
“ ‘Received of David H. Baker four dollars ($4.00) for a marriage license issued to David H. Baker and Lenore Cummings on this the 30th day of July 1950. Three ($3.00) dollars of this amount is paid under protest by David H. Baker, claiming that he could get the marriage license in other counties for the sum of one ($1.00) dollar.
“ ‘The receipt of three ($3.00) is hereby acknowledged as paid under protest.
“ ‘W. E. Allen,
“ ‘W. E. Allen, Judge of Probate
“ ‘July 30, 1950.’ ”
The prayer of the complaint is to the effect that the act referred to therein be adjudged unconstitutional and that plaintiff have judgment against the defendants for $3.00.
Within due time the defendant W. E. Allen filed an answer admitting all of the allegations contained in the complaint and alleging that all in excess of $1.00 collected from the plaintiff was wrongfully and unlawfully exacted under the authority of the act approved on February 5, 1948, which was unconstitutional.
A joint answer was filed by the County of Dillon and J. B. Cole as Treasurer in which it was admitted that the parties applied to the defendant Allen, Probate Judge, for a marriage license on July 29, 1950, and on the following day were married by him. These defendants denied that any money had been wrongfully collected from the plaintiff. They asserted the act .above mentioned was constitutional. In reference to Paragraph 7 of the complaint, heretofore quoted, the defendants alleged that they did not have knowledge or information sufficient to form a belief as to said allegations and, therefore, denied same.
*147Thereafter the plaintiff moved for judgment on the pleadings “on the ground that the answer of the defendant, W. E. Allen, admits the allegations of the complaint and joins in the prayer for relief, and the answer of defendants, County of Dillon and J. B. Cole, as Treasurer of the County of Dillon, fails to deny any material allegation of the complaint, fails to state any defense sufficient in law to the cause of action alleged by the plaintiff, and fails to tender any issue of fact in the case.” The plaintiff also gave notice that if the above motion should be denied, he would thereupon move to strike out the answer of the County of Dillon and the Treasurer “as sham and irrelevant, and if such motion should be granted the plaintiff will then move again for judgment on the pleadings.”
The foregoing motions were duly heard by the Resident Judge of the Fourth Circuit who struck the answer above referred to as sham and irrelevant and granted judgment on the pleadings in favor of the plaintiff for the sum of $3.00. He held that the cause of action stated in the complaint was not under a statute for the recovery of a tax or license paid under protest but was a common law action for money had and received; that the uncontroverted facts showed that the sum of $3.00 in controversy was paid involuntarily; that the answer of the County of Dillon and its Treasurer was “sham and irrelevant, manifestly false and interposed solely for the purpose of delay”; and that the act under which the Probate Judge collected said amount of $4.00 was unconstitutional upon the ground that it was a special law where a general law could be made applicable, in violation of Article 3, Section 34 of the Constitution.
The County of Dillon and J. B. Cole, as Treasurer thereof, have appealed from said order.
The general statute, Section 8558 of the 1942 Code, fixes a fee of $1.00 for the issuance of a marriage license. This section was amended by Act No. 603 of the 1948 Acts of the General Assembly, 45 St. at L. 1612. Under the* terms *148of this amendment, the Probate Judge of' Dillon County is required to charge and collect $4.00 for each and every marriage license issued by him and to perform marriage ceremonies during office hours without charge when requested to do so.
In January, 1949, an action was brought by the County of Dillon against W. E. Allen, Probate Judge, and the surety on his official bond for an accounting with respect to the fees on all marriage licenses issued, or which should have been issued, by him as Probate Judge since the adoption of the above amendment. It was alleged in this complaint that Allen, pursuant to a fraudulent scheme to circumvent the requirements of the act passed in 1948, obtained from other counties in the state q large number of marriage licenses in blank which were issued to numerous persons applying to him as Probate Judge of Dillon County for a marriage license; and that he neglected and refused to issue to such applicants a proper license from Dillon County and collect therefor the sum of $4.00. Allen and his surety demurred to the complaint in that action on the ground that the 1948 Act was unconstitutional. This demurrer was sustained but upon appeal to this Court, the order sustaining the demurrer was reversed with’ leáve to the defendants to answer. Dillon County v. Maryland Casualty Co., 217 S. C. 66, 59 S. E. (2d) 640, 643. It was there held that it was the duty of Allen to collect the sum of $4.00 for each marriage license issued by him and that the constitutionality of the fee fixed by the act was “one with which Allen and his surety are not concerned.” Consequently, we did not pass upon the constitutionality of the provision of the act fixing a fee of $4.00 for the issuance of a marriage .license, stating that this could only be done in an action by a party injuriously affected. In due course the defendants in that action answered and the cause is now awaiting trial. The opinion of this Court in the above case was filed on April 20, 1950. The action now before us was commenced in August, 1950.
*149In determining whether the Court below erred in granting the motion to strike and awarding judgment on the pleadings, it is necessary to ascertain the essential elements of the cause of action stated in the complaint. It seems to be conceded by both respondent and appellants, and we shall therefore assume, that none of our statutes pertaining to a recovery of a tax or license paid under protest apply to the payment of a fee for a marriage license, and that respondent is restricted to a common law action for money had and received.
In 33 Am. Jur., Licenses, Section 88, page 396, it is stated: “In accordance with the general rule governing voluntary payments, and the general rule in respect of voluntary payments of illegal taxes, license taxes, if voluntarily paid, cannot be recovered back on the ground of the illegality of the tax; if there is no coercion or mistake of fact, the case falls within the general rule of voluntary payments and this is generally held to be true by the weight of authority although the payment is made under a mistake of law. Under this rule the illegality of the demand paid constitutes of itself no ground for relief, but there must be, in addition, some compulsion or coercion attending its assertion which controls the conduct of the party making the payment.” Our case of Robinson v. City Council of Charleston, 2 Rich. 317, 45 Am. Dec. 739, is cited in support of the foregoing general rule.
The strict rule above mentioned has undoubtedly worked an injustice in many instances. The hardships incident to its rigid enforcement have been mitigated in a number of states by the enactment of statutes providing for the recovery of illegal taxes or licenses. The modern tendency is toward a relaxation’ as to what is essential to constitute duress. In Lamborn v. Dickinson County Com’rs, 97 U. S. 181, 24 L. Ed. 926, the Court said: “It is settled by many authorities that money paid by a person to prevent an illegal seizure of his person or property by an officer claiming authority *150to seize the same, or to liberate his person or property from illegal detention by such officer, may be recovered back in. ■an action for money had and received, on the ground that the payment was compulsory or by duress or extortion. Under this rule, illegal taxes or other public exactions, paid to prevent such seizure or remove such detention, may be recovered back, unless prohibited by some statutory regulation to the contrary.”
Although there is quite a diversity of opinion as to the circumstances necessary to show compulsion or coercion, it is uniformly recognized that to sustain a recovery in an action of this kind there must be an involuntary payment of the tax or license sought to be recovered. In City of Columbia v. Peurifoy, Receiver, 148 S. C. 349, 146 S. E. 93, 94, this Court said: “We take it to> be a well-established principle of law that one who voluntarily pays taxes to a state or one of its political subdivisions cannot recover the same, in the absence of statutory provisions specifically authorizing such recovery.”
In an action at common law for money had and received, protest alone does not preserve the right to recover if the circumstances show that there was no compulsion or coercion. In other words, there is no magic in the act of paying under protest and that fact alone, unaccompanied by other circumstances, is insufficient to convert a voluntary payment into an involuntary one so as to authorize recovery. “There are, no doubt, cases to be found in which the language of the court, if separated from the facts of the particular case under consideration, would seem to imply that a protest alone was sufficient to show that the payment was not voluntary; but on examination it will be found that the protest was used to give effect to the other attending circumstances.” Union Pacific Railroad Co. v. Board of County Commissioners of the County of Dodge, 98 U. S. 541, 25 L. Ed. 196. Language of the nature mentioned, by way of dicta, will be found in our own case of *151Sutton v. Town of Port Mill, 171 S. C. 291, 172 S. E. 119. Of course, the fact that a license or tax was paid under protest is a circumstance to be considered in determining whether the payment was voluntary.
It follows from the foregoing views that one of the cardinal issues in this case is whether respondent paid the alleged illegal excess of $3.00 involuntarily. The burden of proof is upon him, as all payments are presumed to be voluntary until the contrary is made to appear. In Moody v. Stem, 214 S. C. 45, 51 S. E. (2d) 163, 169, it was said: “Where it is sought to recover the amount of an overcharge, it is incumbent upon the plaintiff to allege and prove some fact or facts which show that the money was paid under circumstances deemed to be involuntary.” Respondent alleges in Paragraph 7 of his complaint that since he could not obtain a marriage license otherwise, he paid the sum of $4.00 demanded of him “under protest”. This is denied by appellants. An issue of fact is thus raised which must be determined on the trial of the case. Moreover, as heretofore stated, the fact that said amount was paid “under protest” does not conclusively show that it was paid involuntarily. The vital issue is — did the payment by respondent constitute an involuntary payment within the purview of the rule heretofore set out? This question cannot be answered on the pleadings.
Respondent contends that the question is controlled by Levy v. Roberts, 1 McCord 395; Murray v. Moorer, Cheves 111, and Alston v. Durant, 2 Strob. 257. In the first two cases it was held that a person paying money to a sheriff on an execution cannot be considered as paying it voluntarily. In Alston v. Durant, a sheriff exacted certain unlawful charges as a condition precedent to the delivery of plaintiff’s runaway slave. This payment was held not to be voluntary and the plaintiff was allowed to recover. On the other hand, appellants say that the case is governed by Robinson v. City Council of Charleston, supra, 2 Rich. 317, 45 Am. Dec. *152739. In ..that case the City of Charleston passed an illegal ordinance imposing on non-residents a higher price for badges for laborers and licenses for drays employed within the city than upon residents. The plaintiff, a non-resident, paid the increased price and then brought an action to recover back the excess so paid. It was held that the payment was voluntary and that the action could not be maintained.
The fact that recovery was denied in the Robinson case but permitted in the three cases relied on by respondent illustrates the general rule that whether duress or compulsion exists in a particular transaction is ordinarily a question of fact depending on the situation of the parties and all the surrounding circumstances. We cannot say to what extent these cases are applicable to the instant case until the facts are known.
We now come to the question of whether the Court below erred in holding that appellants’ denial of Paragraph 7 of the complaint was sham and false. “A sham answer is one good in form, but false in fact, and not pleaded in good faith; being a mere pretense, set up in bad faith and without color of fact.” Etiwan Fertiliser Co. v. Johns, 202 S. C. 29, 24 S. E. (2d) 74, 76. It was there held that the power to strike a pleading as sham “will be very sparingly exercised, and only where the pleading is manifestly false, interposed to delay and defeat the plaintiff’s action, and only in cases free from doubt.” This is true for the reason that the truth or falsity of a pleading should ordinarily be determined by a jury, with full opportunity for producing, examining and cross-examining the witnesses. Accordingly, it is well settled that a motion of this kind is not looked upon with favor.
It certainly cannot be said that appellants’ answer is manifestly false and not interposed in good faith. It is true that at the hearing of the .motion to strike; the original receipt, a copy of which is set forth in Paragraph ■7 of the complaint, was produced but it is not conclusive of *153the facts therein stated. Appellants are entitled to cross-examine the Probate Judge, who signed this receipt, as to the assertions contained therein and the circumstances under which it was prepared and delivered.
For the foregoing reasons, we think the Court erred both in striking out appellants’ answer as sham and irrelevant and in granting judgment on the pleadings. In view of the foregoing conclusion, it is unnecessary to pass on the constitutionality of the act under which the money in controversy was collected. The validity of that act need not be determined unless respondent shows an involuntary payment. Our refusal now to pass upon that question is sanctioned 'by the well established rule that ordinarily the courts will not pass upon a constitutional question unless a decision upon that point becomes necessary to the determination of the cause. DeTreville v. Groover, S. C., 65 S. E. (2d) 232, and cases therein cited.
There only remains for consideration a subsidiary question. During the argument on the motion heretofore discussed, counsel for appellants asked, in the event the-motion to strike was granted, for permission to file an amended answer but did -not disclose to the Court the nature of the proposed amendment. The Court refused the motion to amend. Ordinarily, as pointed out in the recent case of Mack v. Plowden, 217 S. C. 112, 60 S. E. (2d) 57, amendments to pleadings should be liberally allowed in furtherance of justice but until the nature of the proposed amendment is known, it cannot be properly determined whether appellants’ motion should be granted. As the case must be remanded for trial, this motion may be renewed and if made, should set out the particulars in which 'it is sought to amend.
The order appealed from is reversed.
Fishburne and Stukes, JJ., concur. Baker, C. J., and Tayeor, J., dissent.