(dissenting).
*154The statement in the main opinion correctly sets forth the proceedings in the Circuit Court, but I find myself in disagreement as to the issues thereby raised, and the disposition thereof.
The pleadings in the case, in my opinion, raise only the issue whether the marriage license was paid under protest, and whether Act 603, requiring the payment of $4.00 for a marriage license in Dillon County, is constitutional. The heart of the matter is contained in paragraph seven of the complaint, where it is alleged that the sum of $4.00 was paid under protest, and the receipt for the amount is set forth, and paragraph 5 of the answer of the appellants, to the effect that they do not have information sufficient to form a belief as to the truth thereof, and, therefore, deny the same.
The appellants in the lower court took the position, generally, that the respondent, having alleged the payment under protest, was required to prove it, and the denial, on information and belief, of payment under protest presented a factual issue for determination upon the taking of testimony thereabout. The respondent, on the other hand, took the position, generally, that the allegations in paragraph 7 as to payment under protest were not made as a necessary prerequisite to recovery, but were made to show the involuntary character of the payment, and the right to recover it as for money had and received. In other words, the basis of the contention of the respondent below was that the payment under protest was bottomed on his inability to obtain a marriage license otherwise, and not because he may have been required to do so in order to recover the alleged excess charge of $3.00.
It is admitted that Allen, the Probate Judge, was compelled to collect $4.00 for a marriage license issued in Dillon County. County of Dillon v. Maryland Casualty Co., 217 S. C. 66, 59 S. E. (2d) 640. It must further be admitted that respondent could not lawfully marry without a license, and that he could not procure a license in Dillon County, where *155he lived, without paying $4.00 therefor. It seems to follow inescapably that if he paid $4.00 for a marriage license, under the conditions mentioned, it was under such circumstances of duress as to be involuntary, and did not require any formal protest. The protest by respondent could not avail to prevent the collection, if the license was to be obtained. The parties were not on an equal footing. In order to comply with the law, respondent had to meet the demand for payment of $4.00 for the license.
In Swift Courtney & Beecher Co. v. United States, 111 U. S. 22, 4 S. Ct. 244, 247, 28 L. Ed. 341, the plaintiffs, who were manufacturers of matches and furnished their own dies for revenue stamps used by them, and were thereby entitled to a commission of ten per cent on the price of the stamps, accepted for a long period of time their commissions in stamps at their face value in lieu of money, the stamps, of course, being worth to them only ninety cents on the dollar. They did this because the Treasury Department would pay in no other manner. It was held that the apprehension of being stopped in their business by noncompliance with treasury regulation was a sufficient moral duress to make plaintiffs’ payment for stamps on the basis fixed by the Treasury Department involuntary. Mr. Justice Matthews, delivering the opinion of the Court, said:
“* * *. The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction or discontinue its business. It was in the power of the officers of the law, and could only do as they required. Money paid, or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, volenti non fit injuria.”
*156The Court, in the .course of its. opinion, further quoted with approval from a Vermont case, Beckwith v. Frisbie, 32 Vt. 559-566, where it was said: “To make the payment a voluntary one, the parties should stand upon an equal footing.” Immediately following this quotation, the opinion states: “If a person illegally claims a fee colore officii, the payment is not voluntary so as to proclude the party from recovering it back.”
A consideration* of the case of Union Pacific Railroad Company v. Board of County Commissioners of the County of Dodge, 98 U. S. 541, 25 L. Ed. 196, cited and quoted from in the opinion of Justice Oxner, shows lack of application to the admitted factual situation here involved. There was no element of compulsion present. All that appeared was that certain taxes claimed to be due by the County had been charged on the tax lists to the Railroad, and had becomé delinquent. Before any active steps whatever had been taken to enforce their collection, the Railroad Company presented itself at the Treasurer’s office, and in the course of business paid in full everything that was charged against it, accompanying the payment, with a general protest. No element of compulsion was present in that case, such as the necessity of procuring a marriage license in order to be legally married.
The old case of Robinson v. City Council of Charleston, 2 Rich. 317, is found not to be apposite. It appears from the opinion that the plaintiff, suing for return of license fees paid to the City for several years, had paid the money without “objection or reservation”; that he was not without a legal remedy to vindicate his rights; and was under no coercion to abide by the ordinance under which he paid the money.
It has been stated to be the law of this state that money paid to a sheriff on an execution cannot be considered as a voluntary payment. Levy v. Roberts, 1 McCord 395. It is likewise certain that if money is exacted by a sheriff colore officii, as- a condition of releasing property of a party held *157by the sheriff, such a payment is not voluntary in the eyes of the law. Alston v. Durant, 2 Strob. 257. I cannot see that a payment to an officer of a county for a marriage license, when the license is required as a condition of lawful marriage, and the Judge of Probate is armed with the command of the Legislature to collect it, is in any different category. If an officer of the law refuses to render a service, to which another is entitled, such as the issuance of a marriage license, except under the payment-of an .amount over the sum he has a legal right to demand, payment of the amount demanded under such circumstances is not voluntary,- and the excess may be recovered in an action for money had and received.
. I find myself in agreement with the statement of this Court in Sutton v. Town of Fort Mill, 171 S. C. 291, 172 S. E. 119, to the effect that, under the general provision of law, payment under protest will protect the payer from the charge of having made a voluntary payment, and permits a suit for money had and received. Especially is such law applicable when a person is under compulsion of making the payment to comply with a legal requirement such as -procuring a marriage license, and is denied the license without payment of the amount demanded. I admit that the statement in the Sutton case is dicta, but it is sound as applied to the circumstances prevailing in this case. Attention is again called to the fact that in Robinson v. City Council, supra, the payment was without objection or reservation.
The 6th exception of the appellants challenges the .propriety of striking out their answer and granting judgment on the pleadings by reason of the inapplicability of Section 2808, 1942 Code of Laws. The appellants contend in that exception ■ that the Circuit Judge should have held that this Section applies to all license taxes going into the county treasury; and in their brief, the following appears: “The case now before this. Court we think definitely comes within the reasonable purpose of Section 2808, because the action is one against the County Treasurer to recover an amount paid by way of a license tax. But we are aware that this *158section has been rather strictly construed, and since this payment does not relate to an amount charged on the books of the County Treasurer, it probably does not come within the letter of Section 2808.”
This but emphasizes the statement first made herein to the effect that the pleadings raise only the issue whether the marriage license was paid under protest and as to the constitutionality of the Act. It is nowhere contended by the appellants in their exceptions, that, if the payment was made under protest, such in and of itself would not be sufficient to authorize the máintenance of the action. Exception 5 is the only one in which the word “voluntary” is used, and there it is used only as distinguished from being paid under protest. The subject of the involuntary nature of the payment only arises in connection with the contention of the respondent that it was unnecessary to protest, under the circumstances prevailing, because the payment under the circumstances was an involuntary one. There is no exception, upon which the appellants would be entitled to maintain in this Court, that if the payment was actually made under protest, the respondent would not be. entitled tO' recover. This is directly in the face of their contention that payment under protest is the determining factor.
This brings us to the question as to whether or not the allegations in the answer to the effect that appellants did not have information sufficient to form a belief as to the truth of the statements contained in paragraph seven made it necessary for the Circuit Judge to refuse to strike the answer as sham and frivolous. Upon the hearing of this motion, the respondent offered in support of the motion the original receipt issued by the Probate Judge to him for the $4.00 paid for the license, which receipt reads as follows :
*159“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) dollars is hereby acknowledged as paid under protest.
“W. E. Allen,
“July 30, 1950. Judge of Probate.”
The appellants did not offer objection to the introduction of this receipt, or its consideration by the Circuit Judge.They did not, upon the hearing, contest its validity or that it in any manner was not exactly what it purported to be, viz., a payment of $3.00 thereof under protest. Bearing in mind that the Probate Judge, who issued the receipt (an officer of the appellant, County of Dillon) filed an answer in this cause admitting that the said amount was paid under protest, and that the receipt as set forth in the complaint was delivered to -the respondent, the Circuit Judge was fully warranted in considering the said receipt, finding it to be valid, and striking the answer as sham and irrelevant. It is settled law that when a motion is made to strike an answer as sham and irrelevant, and the Circuit Judge, without objection, receives affidavits, exhibits or testimony, he is authorized to strike an answer if it is found from such showing that the answer is mainifestly untrue and interposed for delay, and therefore sham and frivolous. A motion to strike out as sham presents a question of fact to be determined by the court upon affidavits or in such other manner as the court may direct. Union Guano Co. v. Garrison, 130 S. C. 404, 126 S. E. 133; Germofert Mfg. Co. v. Castles, 97 S. C. 389, *16081 S. E. 665; Ocean-Forest Co. v. Woodside, 184 S. C. 428, 192 S. E. 413; Etiwan Fert. Co. v. Johns, 202 S. C. 29, 24 S. E. (2d) 74.
When the original receipt for the license' fee indicating that it was paid under protest, was offered, the duty devolved upon the appellants to object to its consideration, or to make' some kind of showing to the effect that it was not valid or what it purported to be. This they did not do. I, therefore, am of the opinion that the motion to strike the answer as sham and irrelevant was properly granted.
This leaves two questions to be decided, to wit, whether Act No. 603 of the 1948 Acts fixing a charge of $4.00 for a marriage license in Dillon County is unconstitutional, in that it is in violation of Article III, Section 34, of the Constitution of South Carolina; and whether the Circuit Judge was in error in refusing the appellants’ motion to be allowed to file an amended answer.
Upon these questions, I find myself in agreement with the conclusions of the Circuit Judge as set forth in his order holding the Act to be unconstitutional, and refusing the motion to allow the appellants to serve an amended answer, and therefore adopt that portion of his order reading as follows:
“It is contended by the plaintiff that Act No. 603 is unconstitutional in that (1) it is a special law violating Article ill, Section 34, of the Constitution of South Carolina; and (2) it denies to the plaintiff, a resident and citizen of Dillon' County, the equal protection of the laws in violation of Article I, Section 5, of the Constitution of South Carolina and the Fourteenth Amendment of the Constitution of the United States.
“The only portion of Act No. 603 brought into question in this action is that portion relating to the fee required for a marriage license in Dillon County, and the scope of this order is confined thereto.
*161- “Act No. 603 attempts to fix the fee for a marriage license in Dillon County at Four ($4.00) Dollars. Section 8558, 1942 Code of Daws, is a general law, of statewide application, and fixes the fee for a marriage license in every county of South Carolina at.One ($1.00) Dollar.
• “Article ID, Section 34, Subdivision 9, of the South Carolina Constitution, as amended in 1935, is as follows:
“ ‘In all other cases, where a general law can be made applicable, no special law shall be enacted: Provided, That the General Assembly may enact local or special laws fixing the amount and manner of compensation to be paid to County Officers of the several counties of the State, and may provide that the fees collected by any such officer, or officers, shall be paid into the treasury of the respective counties.’
“The proviso to subdivision 9, of Article III, Section 34, of the South Carolina Constitution relating to the power of the General Assembly to enact local or special laws fixing the amount and manner of compensation of county officers has no application here. Act No. 603 does not, insofar as the Four ($4.00) Dollar charge for a marriage license is concerned, relate to the amount or manner of compensation of county officers, but relates solely to the cost of a marriage license.
' “This Act in question is not a revenue measure. It will be found that Section 8557 requiring marriage licenses -is contained in Chapter 164, Article I, 1942 Code of Daws (Secs. 8556-[8571-1 ]) all of which is devoted to the subject of marriages and their regulation. In considering together all of the provisions of this article of the Code it is impossible to escape the conclusion that the legislative purpose 'in enacting these provisions, including those requiring marriage licenses, was not to raise revenue but to regulate and place restrictions around marriages in the interest of the general welfare of the public. Marriage is a matter of statewide concern and of general interest. Our civilization *162is largely built around the institution of marriage and the home. It is clear that it was these considerations that prompted the passage of Secs. 8556- [8571-1 ], supra, requiring marriage licenses in South Carolina, and not considerations of revenue.
“The mere fact that the money collected from the licenses may go into public treasury, and may be used for school or other public purposes, is by no means conclusive as to the nature of the charge exacted. The difference between this case and the case of State v. Touchberry, 121 S. C. 5, 113 S. E. 345, 346, and Anderson v. Page, 208 S. C. 146, 37 S. E. (2d) 289, is shown by the following from the Touch-berry case in discussing the statute there involved:
“ 'The only object of the statute and its manifest intent was to raise revenue for road purposes in Clarendon county. It was clearly enacted in the exercise of the taxing power.’
■ “While in those cases the statutes under question were held to have as their only object the raising of revenue, in the present case the object is not the raising of revenue but the regulation of marriage, a matter of statewide concern.
“Other considerations prompt the conclusion reached. If the marriage license fee may be varied throughout the forty-six counties of this State, as is now sought to be done under Act No. 603, then the requirement of the general law of this State may as justifiably be varied so as to eliminate the necessity of obtaining a marriage license in any county desiring to do so. If the General Assembly may raise the marriage license fee in Dillon County, it can with equal authority reduce it below the fee of One ($1.00) Dollar now set by Section 8558, in any county of the State. The sale of marriage licenses would then be conceivably placed on a competitive basis among the several counties of the State. ■In fact, in the brief of counsel for the defendants, it is argued that parties may now get married in Dillon County at a cheaper rate than in other counties of the State and that it is 'to the advantage of the greater majority of the *163people to get married in Dillon County.’ I do not believe that the public interest will be served by opening ‘bargain counters’ over the State of South Carolina in the sale of marriage licenses.
“It was, no doubt, the public interest in marriage, and the statewide concern thereabout, that prompted the enactment of the general laws regulating the subject. Those same considerations impel the striking- down of those provisions of Act No. 603 varying the charge for a marriage license in Dillon County. It seems to me that the broad, sound public policy dictating the uniform regulation of marriage throughout the State, and the enactment of the general law pursuant thereto removes the subject of marriage and the fee to be charged for marriage licenses from the field of permitted special legislation.
“Having concluded that Act No. 603, in the particular stated, violates the provisions of. Article III, Section 34, of the Constitution of South Carolina, it becomes unnecessary to consider its unconstitutionality on other grounds.
* * *
“Upon argument before me, counsel for the defendants asked, in the event the motion to strike the answer be granted, for permission to file an amended answer; but it was not stated in what respect it was desired to amend, and consequently there is nothing before the Court from which it could be fairly concluded that such amendment would be in furtherance of justice, so as to move the Court, in the exercise of its discretion, to grant the right tO' amend. A very similar situation arose in the case of Marion County Lumber Co. v. Hodges, 100 S. C. 477, 85 S. E. 49. Furthermore, under the facts and circumstances of this case, as made to appear to the Court, I do not think that an amendment would be in furtherance of justice. After carefully considering the matter, and in the exercise of my discretion, I have, therefore, concluded that the request to amend should be 'refused, and it is so ordered.”
*164The value of a dollar in South'Carolina has indeed reached a new low when the average citizen of this State has to testify under oath that he did not voluntarily pay $4.00 for something which he believed or knew that he had a legal right to procure upon the payment of $1.00 therefor, and when at the time of the payment of the $4.00 such citizen requested and was given a receipt for the payment of the $4,00 from the officer demanding such amount specifically stating that it was being paid under protest in so far as $3.00 thereof was concerned.
It is my opinion that the order appealed from should be affirmed.
Taylor, J., concurs.