The facts in the first two cases above are practically identical and are similar to those set forth in Wood v. CanyonCounty, ante, p. 556, 253 P. 839. Andrew Asp and J.F. Rowland, appellants and cross-respondents, had made homestead entry and homestead proof for certain land but had not reclaimed or cultivated enough land to permit them to make reclamation proof, and such proof had not been made nor certificates of reclamation or patents issued.
Tax assessments were made on the lands, some of which were paid and some were not paid, the last payment of taxes made in the Asp case being December 8, 1922, and in the Rowland case December 23, 1922.
Mattson v. Canyon County differs from Asp v. Canyon County and Rowland v. Canyon County in one respect, namely, that all taxes assessed were paid and refund of such taxes was petitioned for.
Appellants and cross-respondents petitioned the board of county commissioners of Canyon county, November 19, 1923, for a refund of taxes which they had paid and for the cancelation of assessments which they had not paid. Their petitions not being allowed, appeals were taken to the district court, where the cases were consolidated and a decree was entered modifying the order of the board of county commissioners, denying the refund of taxes paid and canceling the assessments which had not been paid. *Page 563
Respondent and cross-appellant, Canyon county, assigns as error the action of the trial court in modifying the order of the board of county commissioners providing for the cancelation of unpaid taxes assessed, their contention being the same as that made in Wood v. Canyon County, supra. Upon the reasoning and authority of Wood v. Canyon County, supra, the decrees of the district court as to that phase of the cases are affirmed.
Appellants and cross-respondents urge as error the action of the trial court in refusing to refund the taxes paid by them because of the illegal assessments made.
In Howell v. Board of County Commissioners of Ada County,6 Idaho 154, 53 P. 542, the court held that in the absence of statute county commissioners had no right to refund taxes voluntarily paid though illegal and void. Idaho Irr. Co. v.Lincoln County, 28 Idaho 98, 152 P. 1058, held that an illegal tax paid under protest could be recovered in an action at law. The general rule is that taxes voluntarily paid may not be recovered, especially where the illegality depends upon a mistake of law. (37 Cyc. 1178 and 1180.) There was no protest in any of the instances under consideration. The levy of taxes was based upon a mistake of law, namely, the erroneous conception that prior to the issuance of final certificate the lands were taxable. Not having been paid under protest, the taxpayers were not "entitled" even under C. S., sec. 3332, to a refund and the taxes were not recoverable. This renders it unnecessary to discuss any of the further questions raised in the cases. The respective judgments of the trial court are therefore affirmed. Each party to pay his own costs.
Wm. E. Lee, C.J., and Budge, Taylor and T. Bailey Lee, JJ., concur.
Petition for rehearing denied. *Page 564