19 S.D. 302 | S.D. | 1905
It is established by the pleadings that the plaintiff is a Wisconsin corporation engaged in manufacturing and selling lager beer and other malt liquors; that to facilitate the sale of its manufactured products in this state it operated warehouses or depositories at Sioux Falls, Salem, and Red-field; that it paid the state as license fees, under the provisions of chapter 72, p. 203, Laws of 1897, $300, about April 29, 1897, and $1,800 about July 1st in each year from 1897 to 1900, inclusive; that no part of these sums has been repaid; and that the plaintiff’s claim was presented to and rejected by the State Auditor before this action was commenced. The law under which these license fees were collected, so far as applicable to nonresident manufacturers, was declared to be unconstitutional on December 4, 1900. State v. Zophy, 14 S. D. 119, 84 N. W. 391. These allegations of the complaint are denied by the answer: “(6) That éach and all of said payments so made by
The law governing these original actions against the state provides that when the defendant has answered this court shall proceed to hear and determine the cause. If an issue of fact shall arise which the court shall deem necessary 'to be tried by a jury, it shall certify such issue to the circuit court, and such court shall proceed at its next regular term to try the same by jury as in other cases. Rev. Code Civ. Proc. § 27. Following the procedure thus prescribed, the issues made by the pleadings in this action were certified to the circuit court within and for Minnehaha county, “with authority and direction to proceed at the next regular term of such court to try such issues of fact by submitting under proper instructions to a jury duly impaneled and sworn, as in other cases,” certain specified interrogatories. Notwithstanding the explicit order and direction of this court (which constituted the only authority of the circuit court to act in the premises) to submit the issues involved to a jury, the record discloses that the parties waived trial by jury, and stipulated that the issues of fact might be tried by the circuit court. It requires no argument to show that orders of this court cannot be thus modified or abrogated by the parties. These actions cannot be maintained against the state without its consent. They can be prosecuted only in the mode prescribed by the statute; and it is extremely
An examination of the pleadings will disclose that the plaintiff seeks to recover upon two distinctly inconsistent grounds, namely: (1) That plaintiff’s payments were made under'compulsion and,protest, with notice that suit would be brought to recover the same; and (2) that they were made under a mutual mistake of law, the plaintiff and the representatives of the state believing that the law was constitutional and valid. In other words, plaintiff seeks to prove that the payments were at the same time both involuntary and voluntary. This is manifestly impossible. If the payments were made under the mistaken belief that the law was valid, they could not have been made under the belief that the law was unconstitutional, with intent to sue for their recovery. The plaintiff should have been required, by motion, to elect upon which of
It is a well-settled and universally recognized general rule that money voluntarily paid under a claim of right, and with knowledge of the facts on the part of the person making the payment or affected by it, cannot be recovered back on the ground that the asserted claim was invalid or unenforceable. 22 Am. & Bug. Ency. (2d Ed.) 609. .As contradistinguished from voluntary payments, it is equally well settled that payments coerced under duress or unlawful compulsion may be recovered back. Id. 6l2, As it appears that the plaintiff in this case was represented by counsel who insisted, when the first payment at Redfield was made, that the law was unconstitutional, it cannot be successfully maintained that any of the payments were made under an honest belief on the part of the plaintiff that the law was valid; hence it cannot be said that a mutual mistake of law existed, and the only question to be determined is whether there was such compulsion as rendered any of the payments involuntary. Claims known to be illegal by the parties against whom they are asserted may be, and frequently are, paid voluntarily. “The general doctrine has been frequently announced that a payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid, or to prevent a seizure by a party armed with apparent authority to seize the property. The courts, however, have shown a tendency-in the later decisions to extend the doctrine of the earlier common law with regard to compulsory payment; and at the present time, beyond a few general principles, they do not attempt
The amounts paid by the plaintiff .were not demanded as existing liabilities enforceable against it or its property. It was threatened with no proceeding by which the amounts could be collected. It was merely required to pay as a condition precedent to the sale of its products, or subject itself to the supposed penalties prescribed by the statutes. With what was it menaced? Neither the plaintiff, its property, business, nor employes were threatened with any actual or apparent injury, because neither could be interfered with otherwise than by means of a judicial proceeding whereiD the invalidity of the law could be established. Nothing confronted the plaintiff more serious than the alternative of discontinuing its sales or incurring the insignificant expense and inconvenience of such litigation as was necessary to sustain its contention that the law was unconstitutional. To avoid a multiplicity of suits, it might have instituted an action in equity directly after the law took effect to enjoin the enforcement of its penalties. The representatives of the state acted in good faith, without the slightest inclination to harass or oppress the plaintiff. Had the latter promptly invoked the protection of the courts, its business would have sustained no substantial injury, and the defects in the law might have been promptly disclosed and promptly remedied. The statute was unconstitutional, not because it required an excessive license of nonresident manufacturers, but because it did not impose the same burden upon residents similarly situated. Having elected to pay the license, rather than to rely upon its rights, the payments made by the
This case is clearly distinguishable from that of Whittaker v. Deadwood et al., 12 S. D. 608, 82 N. W. 202. That was an action to have certain special assessments for street improvements declared void, to cancel certain sale certificates, and to enjoin the city from issuing a deed to plaintiff’s real property. The decision below was in favor of the defendants. On the day before the time expired for taking out the deed, the action being then pending in this court on appeal, the plaintiff paid the assessments under protest. Thereupon the respondents moved to dismiss the appeal on the ground that no controversy longer existed. The ruling on this motion involved merely a question of procedure. The plaintiff had promptly invoked the aid of the courts to protect his property. He was prosecuting his appeal with due diligence. It was evident that he had not intended to abandon or compromise the litigation, and a final adjudication could not be secured before the act was done which he was seeking to prevent. Under these circumstances this court, Puller, J., dissenting, concluded that the appeal should not be dismissed. The distinction between voluntary and involuntary payments was only incidentally considered as analogous to the question of practice presented. But, assuming that such distinction was directly involved, the decision does not determine the present controversy, because its circumstances are substantially different. If Whittaker had not paid the assessments, a deed conveying his property, fair on its face, would have been issued and recorded. If these license fees had not been paid, nothing could have resulted other than the institution of a judicial proceeding to which the plaintiff would have had a perfect defense.