Consent (OFFSITE LINK) -memorandum of law
Authorities Which Prove the Income Tax Is Voluntary for "Nontaxpayers"
Why Domicile and Becoming a "Taxpayer" Require Your Consent, Form #05.002
Flawed Tax Arguments to Avoid, Section 6.21: Income Taxes are Voluntary
Black’s Law Dictionary, Sixth Edition, p. 1575:
voluntary. “Unconstrained by interference; unimpelled by
another’s influence; spontaneous; acting of oneself.
Coker v. State, 199 Ga. 20, 33 S.E.2d 171, 174.
Done by design or intention.
Proceeding from the free and unrestrained will of the person.
Produced in or by an act of choice.
Resulting from free choice, without compulsion or solicitation.
The word, especially in statutes, often implies knowledge of
essential facts. Without
valuable consideration; gratuitous, as a voluntary conveyance.
Also, having a merely nominal consideration; as, a voluntary
[Black’s Law Dictionary, Sixth Edition, p. 1575]
Treasury Decision 3445-describes
what "voluntary" means when public official refer to the income tax
The principle that taxes voluntarily paid can not be recovered
back is thoroughly established. It has been so declared
in the following cases in the Supreme Court: United States v. New
York & Cuba Mail Steamship Co. (200
U. S. 488, 493, 494); Chesebrough v. United States (192
U. S. 253); Little v. Bowers (134
U. S. 547, 554); Wright v. Blakeslee (101
U. S. 174, 178); Railroad Co. v. Commissioner (98
U. S. 541, 543); Lamborn v. County Commissioners (97
U. S. 181); Elliott v. Swartwout (10 Pet. 137). And there are
numerous like cases in other Federal corn: Procter & Gamble Co.
v. United States (281 Fed. 1014); Vaughan v. Riordan (280 Fed. 742,
745); Beer v. Moffatt (192 Fed. 984, affirmed 209 Fed. 779); Newhall
v. Jordan (160 Fed. 661); Christie Street Commission Co. v. United
States (126 Fed. 991); Kentucky Bank v. Stone (88 Fed. 383); Corkie
v. Maxwell (7 Fed. Cas. 3231).
And the rule of the Federal courts is not at all peculiar
to them. It is the settled general rule of the State courts as well
that no matter what may be the ground of the objection to the tax
or assessment if it has been paid voluntarily and without compulsion
it can not be recovered back in an action at law, unless there is
some constitutional or statutory provision which gives to one so
paying such a right notwithstanding the payment was made without
compulsion.--Adams v. New Bedford (155 Mass. 317); McCue
v. Monroe County (162 N.Y. 235); Taylor v. Philadelphia Board of
Health (31 P. St. 73); Williams v. Merritt (152 Mich. 621); Gould
v. Hennepin County (76 Minn. 379); Martin v. Kearney County (62
Minn. 538); Gar v. Hurd (92 Ills. 315); Slimmer v. Chickasaw County
(140 Iowa, 448); Warren v. San Francisco (150 Calif. 167); State
v. Chicago & C. R. Co. (165 No. 597).
And it has been many times held, in the absence of a statute on
the subject, that mere payment under protest does not save a payment
from being voluntary, in the sense which forbids a recovery back
of the tax paid, if it was not made under any duress, compulsion,
or threats, or under the pressure of process immediately available
for the forcible collection of the tax.--Dexter v. Boston (176 Mass.
247); Flower v. Lance (59 N.Y. 603); Williams v. Merritt (152 Mich.
621); Oakland Cemetery Association v. Ramsey County (98 Minn. 404);
Robins v. Latham (134 No. 466); Whitbeck v. Minch (48 Ohio St. 210);
Peebles v. Pittsburgh.(l0l Pa. St. 304); Montgomery v. Cowlitz County
(14 Wash. 230); Cincinnati & C. R. Co. v. Hamilton County (120 Tenn.
The principle that a tax or an assessment voluntarily paid
can not be recovered back is an ancient one in the common lam and
is of general application. See Cooley on Taxation (vol. 2, 3d ed.
p. 1495). That eminent authority also points out that every
man is supposed to know the law, and if he voluntarily makes a payment
which the law would not compel him to make he can not afterwards
assign his ignorance of the law as a reason why the State should
furnish him with legal remedies to recover it back. And he adds:
Especially is this the case when the officer receiving the money,
who is chargeable with no more knowledge of the law than the party
making payment, is not put on his guard by any warning or protest,
and the money is over to the use of the public in apparent acquiescence
in the justice of the exaction. Mistake of fact can scarcely exist
in such a case except in connection with negligence; as the illegalities
which render such a demand a nullity must appear from the records,
and the taxpayer is just as much bound to inform himself what the
records show, or do not show, as are the public authorities. The
rule of law is a rule of sound public policy also; it is a rule
of quiet as well as of good faith, and precludes the courts being
occupied in undoing the arrangements of parties which they have
voluntarily made, and into which they have not been drawm by fraud
or accident, or by any excusable ignorance of their legal rights
But the question presented must be decided upon the language of
section 252 hereinbefore set forth in this opinion. In the cases
within the purview of the section the right of the taxpayer to so
much of the tax as he has paid in excess of that properly due is
not made to depend upon whether it was paid under protest. The nature
of the section must be regarded, as in the case of the statute before
the court in United States v. Hvoslef (237
U.S. 1, 12), and so regarded it negatives any intent that a
protest should be necessary. In this case as in that the right of
repayment is established by the express terms of the statute itself.
The section is intended to give the Commissioner of Internal Revenue
power to credit or refund overpayments when no claim for a refund
is filed by the taxpayer. Prior to that enactment the commissioner
had no authority to credit or refund overpayments of taxes unless
appeal was duly made to him in the manner prescribed by section
3220 of the Revised Statutes.
Section 252 of the act of 1918 has nothing whatever to do with the
collector of internal revenue or with an action him. The power or
duty to make refunds under the section is vested not in the collector
but in the Commissioner of Internal Revenue. The commissioner, prior
to the enactment of section 252, had no authority to credit or refund
overpayments of taxes unless appeal was duly made to him in the
manner prescribed by section 3220 of the Revised Statutes, which
read: "The Commissioner of Internal Revenue * * * is authorized,
on appeal to him made, to remit, refund, and pay back all taxes
erroneously or illegally assessed or collected * * *." And the appeal
had to be made within two years after the cause of action accrued,
as required by section 3228.
That being the condition of the law Congress enacted section 252
of the act of 1918. The primary purpose of that enactment was to
permit the commissioner of his owm volition upon discovery of any
overpayment to credit or refund the same notwithstanding the provision
of section 3228 of the Revised Statutes, and to limit the time within
which he could make such credit or refund to "five years from the
date the return was made. The section does not in express terms
purport to give the taxpayer a right to sue for the recovery of
the excess in the tax paid. It simply defines the powers and duties
of the commissioner in correcting overpayments which he finds have
been made. It was intended to protect the commissioner in making
refunds which ought to be made prescribed by section 3228 had expired.
Taxes erroneously paid or illegally exacted may be recovered-
1. From the Commissioner of Internal Revenue under section 3220
of the Revised Statutes heretofore referred to.
2. Through an action at law brought against the United States. This
is by virtue of the so-called Tucker Act (Judicial Code, sec. 24,
par. 20, ch. 397, 24 Stat. 635).being held that a suit may be maintained
directly against the United States for the recovery of taxes wrongfully
assessed and collected.-Emery, Bird, Thayer, Realty Co. v. United
States (198 Fed. 242, 249); Christie Street Commission Go. v. United
States (136 Fed. 326).
3. Through an action against a collector who wrongfully exacted
the tax and who may be sued for such money as he is not entitled
to retain.--Smietanka v. Indiana Steel Co. (257
U. S. 1); Sage v. United States (250
U. S. 33).
But in Elliott v. Swartwout (10 Pet. 137), the court held that the
collector was not liable in an action to recover the excess duties
mistakenly collected unless protest was made at the time of payment
or notice was given to him not to pay the money over to the Treasury.
The principle applied was the one applied to agents in private transactions-
that a voluntary payment to an agent without notice of objection
would not subject the agent to liability he having paid it over
to his principal, but that payment with notice or with a protest
might make the agent liable if in despite of the notice or protest
he paid the money over to his principal. But after an act of Congress
required collectors to pay over much moneys it has held that the
personal liability was gone.- Cary v. Curtis (3 How. 236). But later
statutes, as pointed out in Smietanka v. Indiana Steel Co., supra,
recognize suits against collectors in such cases.
In our opinion section 252 of the act of 1918 was apparently designed
to counteract the effect of section 3228 of the Revised Statutes
which limited refunds to a period of two years after the tax had
been paid, and it relates to the matter of obtaining a credit or
a refund from the commissioner. If it impliedly gives a cause of
action, about which we are not now called upon to express an opinion,
it is a cause of action against the United States. It does not confer
a right to bring an action against the collector in cam in which
no Liability otherwise existed.
[Treasury Decision 3445]
Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969)
"At this point, the officer questioning
petitioner told him, falsely, that Rawls had been brought in and
that he had confessed. Petitioner still was reluctant
to talk, but *738 after the officer sympathetically suggested that the victim had
started a fight by making homosexual advances, petitioner began
to spill out his story. Shortly after he began he again showed signs
of reluctance and said, ‘I think I had better get a lawyer before
I talk any more. I am going to get into trouble more than I am in
now.’ The officer replied simply, ‘You can't be in any more trouble
than you are in now,’ and the questioning session proceeded. A full
confession was obtained and, after further warnings, a written version
[. . .]
"Petitioner also presses the alternative argument that his confession
was involuntary and that it should have been excluded for that reason.
The trial judge, after an evidentiary hearing during which the tape
recording was played, could not agree with this contention, and
our reading of the record does not lead us to a contrary conclusion.
Before petitioner made any incriminating statements, he received
partial warnings of his constitutional rights; this is, of course,
a circumstance quite relevant to a finding of voluntariness. Davis v. North Carolina, 384 U.S. 737, 740-741, 86 S.Ct. 1761, 16
L.Ed.2d 895 (1966). The questioning was of short duration, and
petitioner was a mature individual of normal intelligence. The fact that the police misrepresented
the statements that Rawls had made is, while relevant, insufficient
in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’
see, e.g., Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423
(1967), and on the facts of this case we can find no error in
the admission of petitioner's confession."
[Frazier v. Cupp,
394 U.S. 731, 89 S.Ct. 1420 (1969)]
Lee v. Weisman, 505
U.S. 577 (1992)
These dominant facts mark and control the confines of our decision:
State officials direct the performance of a formal religious exercise
at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise,
their attendance and participation in the state-sponsored religious
activity are in a fair and real sense obligatory, though the school
district does not require attendance as a condition for receipt
of the diploma.
This case does not require us to revisit the difficult questions
dividing us in recent cases, questions of the definition and full
scope of the principles governing the extent of permitted accommodation
by the State for the religious beliefs and practices of many of
its citizens. See County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d
472 (1989); Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d
29 (1985); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d
604 (1984). For without reference to those principles in other
contexts, the controlling precedents as they relate to prayer and
religious exercise in primary and secondary public schools compel
the holding here that the policy of the city of Providence is an *587 unconstitutional one. We can decide the case without reconsidering
the general constitutional framework by which public schools' efforts
to accommodate religion are measured. Thus we do not accept the
invitation of petitioners and amicus the United States to
reconsider our decision in Lemon v. Kurtzman, supra. The government involvement
with religious activity in this case is pervasive, to the point
of creating a state-sponsored and state-directed religious exercise
in a public school. Conducting this formal religious observance
conflicts with settled rules pertaining to prayer exercises for
students, and that suffices to determine the question before us.
The principle that government may accommodate the free exercise
of religion does not supersede the fundamental limitations imposed
by the Establishment Clause. It is beyond dispute that, at a minimum,
the Constitution guarantees that government may not coerce anyone
to support or participate in religion or its exercise, or otherwise
act in a way which “establishes a [state] religion or religious
faith, or tends to do so.” Lynch, supra, at 678, 104 S.Ct., at 1361; see also County of Allegheny, supra, 492 U.S., at 591, 109 S.Ct.,
at 3100, quoting Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15-16, 67 S.Ct.
504, 511-512, 91 L.Ed. 711 (1947). The State's involvement in
the school prayers challenged today violates these central principles.
That involvement is as troubling as it is undenied. A school official,
the principal, decided that an invocation and a benediction should
be given; this is a choice attributable to the State, and from a
constitutional perspective it is as if a state statute decreed that
the prayers must occur. The principal chose the religious participant,
here a rabbi, and that choice is also attributable to the State.
The reason for the choice of a rabbi is not disclosed by the record,
but the potential for divisiveness over the choice of a particular
member of the clergy to conduct the ceremony is apparent.
Divisiveness, of course, can attend any state decision respecting
religions, and neither its existence nor its potential *588 necessarily invalidates the State's attempts**2656 to accommodate religion in all cases. The potential for divisiveness
is of particular relevance here though, because it centers around
an overt religious exercise in a secondary school environment where,
as we discuss below, see infra, at 2659, subtle coercive
pressures exist and where the student had no real alternative which
would have allowed her to avoid the fact or appearance of participation.
The State's role did not end with the decision to include a prayer
and with the choice of a clergyman. Principal Lee provided Rabbi
Gutterman with a copy of the “Guidelines for Civic Occasions,” and
advised him that his prayers should be nonsectarian. Through these
means the principal directed and controlled the content of the prayers.
Even if the only sanction for ignoring the instructions were that
the rabbi would not be invited back, we think no religious representative
who valued his or her continued reputation and effectiveness in
the community would incur the State's displeasure in this regard.
It is a cornerstone principle of our Establishment Clause jurisprudence
that “it is no part of the business of government to compose official
prayers for any group of the American people to recite as a part
of a religious program carried on by government,” Engel v. Vitale, 370 U.S. 421, 425, 82 S.Ct. 1261, 1264,
8 L.Ed.2d 601 (1962), and that is what the school officials
attempted to do.
Petitioners argue, and we find nothing in the case to refute it,
that the directions for the content of the prayers were a good-faith
attempt by the school to ensure that the sectarianism which is so
often the flashpoint for religious animosity be removed from the
graduation ceremony. The concern is understandable, as a prayer
which uses ideas or images identified with a particular religion
may foster a different sort of sectarian rivalry than an invocation
or benediction in terms more neutral. The school's explanation,
however, does not resolve the dilemma caused by its participation.
The question is not the good faith of the school in attempting to
make *589 the prayer acceptable to most persons, but the legitimacy of its
undertaking that enterprise at all when the object is to produce
a prayer to be used in a formal religious exercise which students,
for all practical purposes, are obliged to attend.
We are asked to recognize the existence of a practice of nonsectarian
prayer, prayer within the embrace of what is known as the Judeo-Christian
tradition, prayer which is more acceptable than one which, for example,
makes explicit references to the God of Israel, or to Jesus Christ,
or to a patron saint. There may be some support, as an empirical
observation, to the statement of the Court of Appeals for the Sixth
Circuit, picked up by Judge Campbell's dissent in the Court of Appeals
in this case, that there has emerged in this country a civic religion,
one which is tolerated when sectarian exercises are not. Stein, 822 F.2d, at 1409; 908 F.2d 1090, 1098-1099 (CA1 1990) (Campbell, J., dissenting)
(case below); see also Note, Civil Religion and the Establishment
Clause, 95 Yale L.J. 1237 (1986). If common ground can be defined which
permits once conflicting faiths to express the shared conviction
that there is an ethic and a morality which transcend human invention,
the sense of community and purpose sought by all decent societies
might be advanced. But though the First Amendment does not allow
the government to stifle prayers which aspire to these ends, neither
does it permit the government to undertake that task for itself.
The First Amendment's Religion Clauses mean that religious beliefs
and religious expression are too precious to be either proscribed
or prescribed by the State. The design of the Constitution is that
preservation and transmission of religious beliefs and worship is
a responsibility and a choice committed to the private sphere, which
itself is promised freedom to pursue that mission. It must not be
forgotten then, that while concern must be given to define the protection
granted to an objector or a dissenting nonbeliever, these same Clauses
exist to protect religion from government interference.*590 **2657 James Madison, the principal author of the Bill of Rights, did not
rest his opposition to a religious establishment on the sole ground
of its effect on the minority. A principal ground for his view was:
“[E]xperience witnesseth that ecclesiastical establishments, instead
of maintaining the purity and efficacy of Religion, have had a contrary
operation.” Memorial and Remonstrance Against Religious Assessments
(1785), in 8 Papers of James Madison 301 (W. Rachal, R. Rutland,
B. Ripel, & F. Teute eds. 1973).
These concerns have particular application in the case of school
officials, whose effort to monitor prayer will be perceived by the
students as inducing a participation they might otherwise reject.
Though the efforts of the school officials in this case to find
common ground appear to have been a good-faith attempt to recognize
the common aspects of religions and not the divisive ones, our precedents
do not permit school officials to assist in composing prayers as
an incident to a formal exercise for their students. Engel v. Vitale, supra, 370 U.S., at 425, 82 S.Ct., at 1264. And these same precedents caution us to measure the idea of a civic
religion against the central meaning of the Religion Clauses of
the First Amendment, which is that all creeds must be tolerated
and none favored. The suggestion that government may establish an
official or civic religion as a means of avoiding the establishment
of a religion with more specific creeds strikes us as a contradiction
that cannot be accepted.
The degree of school involvement here made it clear that the graduation
prayers bore the imprint of the State and thus put school-age children
who objected in an untenable position. We turn our attention now
to consider the position of the students, both those who desired
the prayer and she who did not.
To endure the speech of false ideas or offensive content and then
to counter it is part of learning how to live in a pluralistic society,
a society which insists upon open discourse towards the end of a
tolerant citizenry. And tolerance*591 presupposes some mutuality of obligation. It is argued that our
constitutional vision of a free society requires confidence in our
own ability to accept or reject ideas of which we do not approve,
and that prayer at a high school graduation does nothing more than
offer a choice. By the time they are seniors, high school students
no doubt have been required to attend classes and assemblies and
to complete assignments exposing them to ideas they find distasteful
or immoral or absurd or all of these. Against this background, students
may consider it an odd measure of justice to be subjected during
the course of their educations to ideas deemed offensive and irreligious,
but to be denied a brief, formal prayer ceremony that the school
offers in return. This argument cannot prevail, however. It overlooks
a fundamental dynamic of the Constitution.
The First Amendment protects speech and religion by quite different
mechanisms. Speech is protected by ensuring its full expression
even when the government participates, for the very object of some
of our most important speech is to persuade the government to adopt
an idea as its own. Meese v. Keene, 481 U.S. 465, 480-481, 107 S.Ct. 1862, 1870-1871,
95 L.Ed.2d 415 (1987); see also Keller v. State Bar of California, 496 U.S. 1, 10-11, 110
S.Ct. 2228, 2234-2235, 110 L.Ed.2d 1 (1990); Abood v. Detroit Bd. of Ed., 431 U.S. 209, 97 S.Ct. 1782,
52 L.Ed.2d 261 (1977). The method for protecting freedom of
worship and freedom of conscience in religious matters is quite
the reverse. In religious debate or expression the government is
not a prime participant, for the Framers deemed religious establishment
antithetical to the freedom of all. The Free Exercise Clause embraces
a freedom of conscience and worship that has close parallels in
the speech provisions of the First Amendment, but the Establishment
Clause is a specific prohibition on forms of state intervention
in religious affairs with no precise counterpart in the speech provisions. **2658 Buckley v. Valeo, 424 U.S. 1, 92-93, and n. 127, 96 S.Ct.
612, 669-670, and n. 127, 46 L.Ed.2d 659 (1976) ( per curiam ). The explanation lies in the lesson of history that was and is
the inspiration for the Establishment Clause, the lesson that in *592 the hands of government what might begin as a tolerant expression
of religious views may end in a policy to indoctrinate and coerce.
A state-created orthodoxy puts at grave risk that freedom of belief
and conscience which are the sole assurance that religious faith
is real, not imposed.
The lessons of the First Amendment are as urgent in the modern world
as in the 18th century when it was written. One timeless lesson
is that if citizens are subjected to state-sponsored religious exercises,
the State disavows its own duty to guard and respect that sphere
of inviolable conscience and belief which is the mark of a free
people. To compromise that principle today would be to deny our
own tradition and forfeit our standing to urge others to secure
the protections of that tradition for themselves.
As we have observed before, there are heightened concerns with protecting
freedom of conscience from subtle coercive pressure in the elementary
and secondary public schools. See, e.g., School Dist. of Abington v. Schempp, 374 U.S. 203, 307, 83
S.Ct. 1560, 1616, 10 L.Ed.2d 844 (1963) (Goldberg, J., concurring); Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573,
2578, 96 L.Ed.2d 510 (1987); Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 261-262, 110 S.Ct. 2356, 2377-2378, 110 L.Ed.2d 191
(1990) (KENNEDY, J., concurring). Our decisions in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962), and School Dist. of Abington, supra, recognize, among other
things, that prayer exercises in public schools carry a particular
risk of indirect coercion. The concern may not be limited to the
context of schools, but it is most pronounced there. See County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S., at 661, 109 S.Ct., at 3137 (KENNEDY, J., concurring in judgment in part and dissenting in part).
What to most believers may seem nothing more than a reasonable request
that the nonbeliever respect their religious practices, in a school
context may appear to the nonbeliever or dissenter to be an attempt
to employ the machinery of the State to enforce a religious orthodoxy.
*593 We need not look beyond the circumstances of this case to see the
phenomenon at work. The undeniable fact is that the school district's
supervision and control of a high school graduation ceremony places
public pressure, as well as peer pressure, on attending students
to stand as a group or, at least, maintain respectful silence during
the invocation and benediction. This pressure, though subtle and
indirect, can be as real as any overt compulsion. Of course, in
our culture standing or remaining silent can signify adherence to
a view or simple respect for the views of others. And no doubt some
persons who have no desire to join a prayer have little objection
to standing as a sign of respect for those who do. But for the dissenter
of high school age, who has a reasonable perception that she is
being forced by the State to pray in a manner her conscience will
not allow, the injury is no less real. There can be no doubt that
for many, if not most, of the students at the graduation, the act
of standing or remaining silent was an expression of participation
in the rabbi's prayer. That was the very point of the religious
exercise. It is of little comfort to a dissenter, then, to be told
that for her the act of standing or remaining in silence signifies
mere respect, rather than participation. What matters is that, given
our social conventions, a reasonable dissenter in this milieu could
believe that the group exercise signified her own participation
or approval of it.
Finding no violation under these circumstances would place objectors
in the dilemma of participating, with all that implies, or protesting.
We do not address whether that choice is acceptable if the affected
citizens are mature adults, but we think the State **2659 may not, consistent with the Establishment Clause, place primary
and secondary school children in this position. Research in psychology
supports the common assumption that adolescents are often susceptible
to pressure from their peers towards conformity, and that the influence
is strongest in matters of social convention. Brittain, Adolescent
Choices and Parent-Peer Cross-Pressures, *594 28 Am.Sociological Rev. 385 (June 1963); Clasen & Brown, The Multidimensionality
of Peer Pressure in Adolescence, 14 J. of Youth and Adolescence
451 (Dec.1985); Brown, Clasen, & Eicher, Perceptions of Peer Pressure,
Peer Conformity Dispositions, and Self-Reported Behavior Among Adolescents,
22 Developmental Psychology 521 (July 1986). To recognize that the
choice imposed by the State constitutes an unacceptable constraint
only acknowledges that the government may no more use social pressure
to enforce orthodoxy than it may use more direct means.
The injury caused by the government's action, and the reason why
Daniel and Deborah Weisman object to it, is that the State, in a
school setting, in effect required participation in a religious
exercise. It is, we concede, a brief exercise during which the individual
can concentrate on joining its message, meditate on her own religion,
or let her mind wander. But the embarrassment and the intrusion
of the religious exercise cannot be refuted by arguing that these
prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the rabbi
who offered them and to all those for whom the prayers were an essential
and profound recognition of divine authority. And for the same reason,
we think that the intrusion is greater than the two minutes or so
of time consumed for prayers like these. Assuming, as we must, that
the prayers were offensive to the student and the parent who now
object, the intrusion was both real and, in the context of a secondary
school, a violation of the objectors' rights. That the intrusion
was in the course of promulgating religion that sought to be civic
or nonsectarian rather than pertaining to one sect does not lessen
the offense or isolation to the objectors. At best it narrows their
number, at worst increases their sense of isolation and affront.
See supra, at 2658.
[Lee v. Weisman,
505 U.S. 577 (1992)]
Bouvier's Law Dictionary, Vol. II, Third Revision, Eighth Edition,
1914, pp. 3230-3238:
In order to invoke the powers of a court of equity to restrain the collection
of illegal taxes, the case must be brought within the well recognized
foundations of equitable jurisdiction [* * *] and it must clearly appear
not only that the tax is illegal, but that the property owner has no
adequate remedy at law, and that there are special circumstances bringing
the case under some recognized head of equity jurisdiction…” [Cites
“Taxes become a lien on property only by statute…”
“Taxes illegally assessed and paid may always be recovered back,
if the collector understands from the payor that the taxes are regarded
as illegal and that suit will be instituted to compel the refunding
of them; Erskine v. Van Arsdale, 15 Wall. (U.S.) 75, 21 L.Ed. 63, a
case of internal revenue taxes.”
“Where a state official receives money for a tax paid under duress
with notice of its illegality, he has no right to it and the name of
the state does not protect him from suit; Atchison, T. & S. F. R. Co.
v. O'Connor, 223 U.S. 280, 32 Sup.Ct. 216, 56 L.Ed. 436, Ann.Cas. 1913C,
rule is firmly established that taxes voluntarily paid cannot be recovered
back, and payments with knowledge and without compulsion are voluntary;
when paid under protest or with notice of suit, a recovery may, on occasion,
be had, although, generally speaking, even protest or notice will not
avail if the payment be made voluntarily, with full knowledge, and without
any coercion by the actual or threatened exercise of power possessed,
or supposed to be possessed, over person or property, from which there
is no means of immediate relief than payment; Chesebrough v. United
States, 192 U.S. 253, 24 Sup.Ct. 262, 48 L.Ed. 432 (purchase of war
revenue stamps for deed without protest or notice)."
[Bouvier's Law Dictionary, Vol. II, Third Revision, Eighth Edition, 1914, pp. 3230-3238]