Houtz v. Board of Commissioners

70 P. 840 | Wyo. | 1902

Potter, Chief Justice.

The question chiefly urged in this case is the right of the plaintiff in error to recover from the county without having previously presented his claim to the Board of County Commissioners in the manner required by law for audit and allowance. The constitutional and statutory provisions upon the subject are as follows:

“No money shall be paid out of the State Treasuiy except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands, against the State, or any county or political sub-division,, shall be auditedj allowed or paid until a full itemized statement in writing, verified by affidavit, shall be filed with the-, officer or officers whose duty it may be to audit the same.”' (Constitution, Art. 16, Sec. 7.)

“The Board of County Commissioners of each county shall have power at any meeting: .... To examine and. settle all accounts of the receipts and expenses of the-county, and to examine, settle and allow all accounts chargeable against the county, and when so settled and allowed,, they may issue county orders therefor as provided by law.” (R. S., Sec. 1058.)

“No account shall be allowed by the Board of County Commissioners unless the same be made out in separate-items, properly dated, and the value of each item specifically described, and when no specific fees are allowed by law, the-date that such services were rendered and the time actually and necessarily devoted to the performance of any service-charged in such account shall be specified, which account so. made out shall be verified by affidavit, setting forth that said account is just and correct, and that the whole or no. part of the same has been paid by the county or any individual ; Provided, nothing in this section shall be construed! to prevent the Board of County Commissioners from disallowing any account, in whole or in part, when so rendered! and verified, nor from requiring any other or further evi— 'dence of the truth and propriety thereof, as they may think ;proper.” (R. S., Sec. 1062.)

“For any violation of the preceding section, the Board of '■County Commissioners shall be held responsible on their ^official bonds to the full amount of any account so allowed, to be recovered in an action of debt for the use of the proper •county, should the evidence show that the whole or any part ■of any account has been allowed by any Board of County ■Commissioners contrary to the provisions of the preceding .section.” (R. S., Sec. 1063.)

“All claims and demands held by a person, or persons, ■company or corporation, against a county, shall be presented for audit and allowance to the Board of County Commis.sioners of the proper county, as provided by law, before any ■action, in any court, shall be maintainable thereon.” (R. S., Sec. 1216.)

Considering these various provisions together, which should be done to arrive at an intelligent understanding of the intention of the law-making power, it is plain that the purpose of requiring a full itemized statement was to hedge .a County Board about with such restrictions in the allowance of bills that the individual citizens and taxpayers might have the means of knowing the cause and validity of county expenditures, and that the requirement for verification has for its object a showing of good faith and honesty in the •presentation of the bill, and some evidence of the truth, justness and correctness of the claim. As was said in a recent case, the provisions are “designed to protect the board from importunities to pass upon claims before they rare presented in such a way as to be considered intelligently, to enable it to easily eliminate improper charges from claims, and to enable taxpayers to detect abuses in the allowance of claims.” (Northern Trust Co. v. Snyder (Wis.), 89 N. W., 460.)

We do not perceive how it is possible to avoid the per■emptory language of Section 1216, and to permit an action •to be maintained upon a claim coming within its purview without positively disregarding the terms of the statute. Indeed, if we do not mistake the position of counsel, the argument is not that the statute is directory, but that the cause of action in the case at bar is not such a claim or demand as comes within its meaning or operation. The au-thorites cited in support of that contention are largely, so far as they relate to money demands, cases of tort or involving unliquidated damages; but we think they are not applicable to the issues and facts in the case before us. This case presents no tortious act for which the county would be liable, nor is the demand on which recovery is sought an unliquidated one.' It is attempted to recover certain money alleged to have been paid to the defendant, involuntarily and under duress, and to prevent the party paying the same from being imprisoned, and his property from beng seized,, under a wrongful and void arrest, conviction and judgment of a justice of the peace; the payment having been made in satisfaction of a fine assessed by a justice of the peace-without jurisdiction. The fact is that the money demanded in this action was paid to the justice of the peace; and if it came into the possession of the county, it did so by having-been turned into the County Treasury by said justice.

It appears that the assignors of plaintiff were each separately complained against before a justice of the peace, in-a certain outlying- precinct of the county, for unlawfully bringing sheep into the State without notifying the Board of of Sheep Commissioners, as required by law; and that the proceedings resulted in a judgment by the justice that each-, pay a fine of five hundred dollars and the costs. The amount of the fine and costs was paid to the justice; and it is-claimed that the money so paid was sent to the County Treasurer by the justice, as required in the case of all fines, and was covered into the treasury of ■ the county. It is contended that the justice was without jurisdiction in the premises, and that the money having been wrongfully received, the county should be required to refund the same.

It is certain that the justice was acting in excess of his jurisdiction in pronouncing sentence upon the parties before him. His only authority in the premises was to sit ■as an examining magistrate, and upon ordering the accused to be held to answer in the District Court upon the charge preferred against him, to take a satisfactory recognizance for his appearance before such court, or in default thereof to commit him to the jail of the county until discharged by -due course of law. The jurisdiction of justices of the peace to try and determine public offenses, and impose punishment, is limited by statute to cases in which the punishment prescribed by law does not exceed a fine of one hundred dollars and imprisonment for six months in the ■county jail. (R. S., Sec. 5204.) The offense charged in the cases before the justice, although declared to be a misdemeanor only, is made punishablfe by imprisonment in the county jail not more than sixty ^lays, or by a fine of not less than five hundred dollars nor more than one thousand -dollars. (R. S., Sec. 2091.)

It is clear that the county would not be liable to respond in damages as for a tort for the unwarranted or illegal act -of the justice. Assuming the money paid to the justice, in satisfaction of the fine, to have gone into the County Treasury, the liability of the county, in anyr event, can •only be for a return of the money, recoverable, if at all, by the party or parties entitled thereto in an action as for money had and received. The amount is capable of definite ■ ascertainment, and cannot be treated in any sense as un-liquidated.

The statute particularly applicable to the question in "hand requires that “all claims and demands” shall be pre- ■ sented for audit and allowance before any action in 'any ■court shall be maintained thereon. When taken in connection with the other portions of the statute, the words “claims and demands” ought probably to be understood ■as referring to and covering only claims and demands for ■money, or for the payment of money' — a claim or demand ’.that is to be satisfied according to its terms by the payment of money, or, in the case of a county, its equivalent, a county warrant or order upon the treasurer for money. But, outside of that limitation, the words seem to us to be sufficiently broad and comprehensive to embrace all claims and demands for money; and we think they were thus broadly-used in the statute under 'consideration. That view is. strengthened, if necessary, by a reference to the constitutional provision above quoted.

In California it is held that the term claim, as used in-connection with the estates of deceased persons, has reference to such debts or demands as might have been enforced, against the decedent in his lifetime by personal actions, for the recovery of money, and upon which a money judgment could have been rendered. (Fallon v. Butler, 21 Cal., 25; In re Swain’s Estate, 67 Cal., 641.) Although the-earlier decisions in Wisconsin held that the provision for presentation to a municipality of a claim before any action: should be maintained did not apply to actions for personalt torts, it was conceded in one case, at least, that the term, “claim” was broad enough to include an action for tort, but it was deemed not to do so in the case before the court upon consideration of the connection in which it was employed. (Kelly v. Madison, 43 Wis., 638.) But where the provision was that any claim or demand, of whatsoever-nature, shall be presented, it was held that claims arising; out of torts were included. (Van Frachen v. Fort Howard,. 88 Wis., 570; Hoch v. Ashland, 83 Wis., 361.)

It is perhaps unnecessary for us to go to the length of' holding that a claim arising out of a tort is required to be-presented to the County Board, to entitle a party to maintain an action thereon. The cause of action in the case at bar does not arise out of any tort for which the county-would be in any way liable. As already explained, its liability depends upon whether it has received money of the-plaintiff which in equity and good conscience it ought not to retain. Nevertheless, we think it well to say that the-purpose of the statute, the comprehensive language employed, and the fact that whatever the character of the claim, if one for money, in case it be' legal and justly chargeable to the county, but one method of payment is provided for, we do not perceive any good reason for excluding from the provision of the statute any claim against the county based upon a money demand. (See Powder River Cattle Co. v. Custer Co. (Mont.), 22 Pac., 383.)

In the case at bar the claim was not presented as required by the statute, if indeed it can be considered to have been presented at all. The attorneys for plaintiff in error sent a written communication to the board demanding on his behalf the “recovery back” of a certain sum of money stated in the letter to have been paid into the County Treasury, and that the same had been paid involuntarily and under duress by three persons respectively therein named, and that the plaintiff was the assignee and legal holder of the claims, and that unless the same be paid legal proceedings would be instituted to collect the same. It was not verified; nor did the communication state to whom or what officer the money had been paid, or the circumstances thereof, except as above mentioned.

If there exists any reason for verification in any case, it would seem that one ought to be required, where a claimant makes demand as an assignee, without submitting any evidence of the assignment. It is quite clear that the claim was not presented in such a manner as to have authorized the board to consider it. The only action taken by the board in respect to the communication, as shown in the evidence, was to refer the matter to the County Attorney to investigate and report his findings thereon. It, however, appears that the County Attorney afterward wrote to the attorneys who had submitted the demand stating that the letter had been handed to him for reply, and that the matter therein mentioned had been decided by the board at the preceding November meeting in the presence of the plaintiff Houtz, and his attorney, Mr. Pleywood, and that no further action was required.

The only other reference to the claim of the plaintiff appearing in the record of the proceedings of the board occurs in the minutes of a meeting held November 7, 1899, wherein it is stated that John S. Houtz, with his attorney, A. R. Heywood, appeared before the board in relation to the matter of the fine of five hundred dollars that had been imposed upon “him by the justice of the peace of Thayne precinct, under the charge of having brought sheep into the State before giving the notice as provided by law, and asked that said fine be refunded to him; and at the same time Mr. Heywood appeared as attorney for J. N. Iredale, and Johnson, Duckworth & Company, who having been tried and convicted for said offense in said precinct and fined in the sum of five hundred dollars, each, the board, after having heard the complaints, and being fully advised in the premises, considers that if any redress can be had, it must be in the District Court.

The claim of the plaintiff embraced in the present suit is based upon the payment of fines imposed not upon himself, but upon Hyrum Severson, Andrew Hudson and E. P. Houtz, respectively, and. the proof was confined to the fines assessed against those parties. It appears that no written claim was presented in November, 1899, nor at any other time, except by the letter of March, 1900, already mentioned. The plaintiff did not offer the record of the meeting of November. It was introduced by defendant, and admitted over objection of plaintiff’s counsel. The record was objected to as immaterial, so far as it related to the appearance of Mr. Heywood for John S- Houtz, and as immaterial and incompetent in respect to his appearance for the other parties named in the record of such proceedings. It was no doubt immaterial as showing or tending to show in itself a presentment of the claim sued on, since it does not mention the claims now relied on. And, moreover, the claims were not assigned to plaintiff until March 1st, 21st and 28th, respectively. It seems to have been offered by defendant to show that the fines now complained of were not in fact paid by the assignors of plaintiff, but by the plaintiff himself, and the other parties described in the record of the November meeting of the board.

We have thus adverted to the proceedings of the board for the purpose of disposing of the contention of counsel for plaintiff in error that the board waived a compliance with the statutory requrements by declining to allow the claim upon other grounds than that it had not been presented in form. Without deciding whether the provisions of the statute as to the presentment of claims may be waived by the board, so as to prevent it from insisting upon the absence of a presentment in bar of an action, or to what extent the board may waive strict compliance, we are of opinion that the proceedings cannot be held to amount to a waiver. No claim in writing of any character was filed at or before the November meeting; and the statement contained in the record of that meeting clearly fails to disclose that the claims sued on were the subject of the demand then verbally made upon the board; and we can perceive no warrant for holding that the board, at the November meeting, disallowed, or even acted upon, the claims here in controversy. The only consideration given by the board to the letter of counsel written in March following was to refer the matter to the County Attorney for investigation and report. Notwithstanding that the then County Attorney replied to the letter, as above stated, the record of the board’s proceedings were open to the parties for inspection, from which it could have been readily ascertained that upon these claims the board had not taken final action. Under the circumstances, it would be stretching the principle contended for by counsel to hold that the board had waived a strict compliance with the statute in relation to the claims sued-'on. The letter aforesaid was. not filed as a claim against the county; and it seems, therefore, that it was not regarded as an attempted compliance with the statute relating to the presentation of claims. It appears to have been looked upon more as an ordinary de-lTiand, such as might be made upon an individual. Indeed, we think it not an altogether unwarranted assumption that •counsel, at the time, so conceived the object and effect of the letter, since the petition herein, as originally filed,' alleged in this respect merely a demand upon the defendant that it repay the sum claimed to have been unlawfully exacted from plaintiff’s assignors, and not until the case had gone to trial was the petition amended to show a presentation of the claims. The facts strongly incline our minds to the inference that there was no attempt to comply with the statutory requirements; and, therefore, that the parties were not misled by any of the proceedings of the board.

Plaintiff was not taken by surprise in this matter. Before the introduction of any evidence the defense moved for judgment on the pleadings, giving as one ground the failure of the petition to allege presentment. Thereupon the petition was amended by interlineation. The motion was immediately renewed and overruled. The admission of the letter was objected to as not showing a compliance with the statute. At the conclusion of plaintiff’s testimony a motion for judgment was made by defendant, one of the reasons assigned being that the evidence failed to show a legal presentment of the claim. At any time prior to the final submission of the cause,- the plaintiff could have had a dismissal without prejudice, but advantage was not taken of that privilege. The cause having been submitted, the court had'no alternative but to decide the cause upon the merits. (R. S., Sec. 3755.) There was not even a request for special findings. There seems to exist no just reason, therefore, for this court, if it had any right to do so, to disregard the positive- commands of the statute, in order to avoid the possible consequences of an affirmance of the judgment on this ground.

The court found generally, for 'the defendant and awarded judgment in its favor; and, although we would be required to affirm' 'the judgment on the ground already discussed, there are other reasons which we think lead to the same result.

We are inclined to regard the petition as sufficient to show a cause of action for money had and received, but the case seems to have been instituted upon the theory that the county had committed a tort by unlawfully causing the arrest and conviction of the assignors of plaintiff, and exacting the involuntary payment of a fine from them, while they were under duress, and to prevent their imprisonment and their property from being seized. It is alleged that the defendant wrongfully and unlawfully arrested the parties in question, and caused them to be taken before a certain justice of the peace to answer the charge hereinbefore mentioned ; and that the fine was paid to the defendant to prevent the consequences aforesaid. The arrest, trial, conviction and judgment are alleged to have been void, for the reason that the justice was without jurisdiction over the subject matter of the offense.

It is evident that the county did not cause the arrest, and was in no sense responsible for the proceedings. , The complaints were signed and sworn to by the prosecuting* attorney, but his act in that respect was not the act of the county as a body corporate and politic. In criminal cases the prosecuting attorney represents the State. All prosecutions are conducted in the name and by the authority of the State. (Const., Art. 5, Sec. 15; R. S., Secs. 1104, 5188.) The complaints in question were in the ordinary form of criminal complaints, the State of Wyoming being named as plaintiff; There is not the slightest evidence that the county, through its Board of Commissioners, directed or authorized or had any sort of connection with the making of the complaints, or the prosecution of the persons accused. As a political sub-division and agency of the State, a county sustains very important relations to the State in various matters. The expense of criminal prosecutions occurring in the county are defrayed out of its. treasury; but that fact does not constitute the county the accuser whenever the prosecuting attorney prefers a criminal charge, and secures the conviction of a party for an offense against the penal laws of the State.

With reference to the payment of the fines complained of in this. case, the proof is,, that they were collected by and paid to the justice of the peace. The money so paid may have eventually found its way into the County Treasury, but, if so, it is because, in the performance of his duty in the matter of fines the justice caused the same to be paid to the County Treasurer for the use of the schools of the county.

Whatever, therefore, may have been the defects in the proceedings wherein the fines were collected, the county is not answerable to the plaintiff for the money so collected unless it is shown to have been paid into the County Treasury. This is an action for the recovery of the money, in the nature of an action for money had and received. In Carton v. Board of Commissioners, 10 Wyo., 416; 69 Pac., 1013, this court said as to such an action:. “It is an equitable action, and no recovery can be had except upon proof that the defendant has received money of the plaintiff which, in equity and good conscience, it ought not to retain.”

The evidence upon the question of the receipt of the money sought to be recovered appears to be quite unsatisfactory. On behalf of the plaintiff, the County Treasurer was sworn as á witness, and after stating that he had with him the book showing the receipts of the County Treasurer for the year 1899 for moneys collected for fines, was asked the following question: “Does that book show the receipt during the year 1899, by this county and by the Board of County Commissioners of this county, of moneys received upon fines paid to one N-. B. Anderson, justice of the peace, in this county, by Hyrum Severson, E. P. Houtz and Andrew Hudson?” The witness answered: “I find moneys received from E. P. Houtz, I think, or Eugene.” That is the extent of the information derived from that witness. He was asked to turn to the page where the entry mentioned by him was to be found, and to read from the stub upon which the memorandum appeared. He did read it, showing that it purported to show the receipt of five hundred dollars from Eugene Houtz, and John Duck-worth & Company for trespassing; and, upon motion being made to ■ strike out the answer of the witness, as not identifying the money mentioned as the money sued for, counsel for plaintiff consented that it should go out “for the present;” and it was not again called for. The only material answer of the witness remaining in the case, above quoted, stated no amount, and no fact by which it is possible to ascertain that what he said he had found in the book, had any relations to the fines which this action was brought to recover.

In addition to that testimony, the only other evidence upon the subject is to be found in the testimony of Mr. Sammon, who was the prosecuting attorney when the fines are alleged to have been paid. Before referring to his testimony it should be stated that the docket entries of the justice introduced in evidence to show the proceedings had before him, the judgment and payment of the fines, decalred expressly in two of the cases, those against Severson and E. P. Houtz, that the parties pleaded guilty and paid the fine and costs in checks; and that the other party, Andrew Hudson, having entered a plea of not guilty, was convicted and sentenced to pay fine, and gave notice of appeal, and furnished a bond, but several da)^ later came in and paid the fine and costs, the docket not stating the manner of payment.

Mr. Sammon was asked if he had paid in to the County Treasurer any of the moneys mentioned in the docket entries of Justice of the Peace Anderson which had. been introduced in evidence. He replied that he delivered some checks given him by Mr. Anderson to the County Treasurer, and that he understood them to be in satisfaction of the fines. In answer to other questions, he stated that he acted merely as custodian for the justice in the transmission of the money. At first he stated that what he had brought in he understood to cover the amount of the fines in the three cases, outside, possibly, of some of the costs; but after-wards corrected himself by stating that the fine in one case had not been paid until after the trial, and as he was not there when payment was made,' he knew nothing about it, and did not bring it in.

On cross-examination, he testified that the fines paid, so far as he knew, were paid in checks, but he acknowledged himself unable to say whose checks they were. He was examined further upon the subject, with the result that, according to his recollection, the fines were paid by parties other than those summoned before the justice, but his testimony did not further enlighten the case as to whose checks were given in payment of the fines. Being again questioned by counsel for plaintiff, he testified as follows.: Question: “You say this money which you personally brought into the County Treasurer’s office was in the form of checks?’’ Answer: “That was my understanding; sealed up in an envelope, and I never got to see it, but my impression is they were checks.” Question: “Did you ever see one of these checks ?” Answer: “I don’t think I have. No, Mr. Rogers, I don’t think I have.”

Now, without any disposition to be technical, it seems to us that the proof of the receipt of the money by the county is insufficient to authorize a reversal of the judgment. Not having seen the checks, and they being sealed up in an envelope, Mr. Sammon was clearly incapable of testifying to the fact that the fines were actually paid to the treasurer. Indeed, his statements were guarded in that respect, and he stated merely his understanding that the envelope he brought with him to the treasurer’s office was supposed to contain the fines in two of the cases. Whether the checks if, in fact, delivered were ever collected is not disclosed. It may be said that, had they not been colletced, suit would not have been brought; but it was incumbent upon the plaintiff to establish his case, and certainly it was his duty to show the, very material fact in his case that the money claimed had been paid into the County Treasury, the allegation upon that subject having been denied by the answer. Iii case of the fine paid some time after the hearing, there is no proof whatever to 'show its receipt by the county.

We might rest here, without discussing any other question in the case, but we find the evidence to be not altogether convincing that the' money was paid involuntarily, or while under duress and to avoid imprisonment.

It may be conceded that when there is an arrest for improper purposes, without a just cause; or an arrest for a just cause, but without lawful authority; or where there is an arrest for a just cause, and under lawful authority, for unlawful purposes, it may be contsrued to constitute duress. (Richardson v. Duncan, 3 N. H., 508; Severance v. Kimball, 8 N. H., 386.) In Durr v. Howard, 6 Ark., 461, recovery was permitted of a fine imposed for a criminal offense by the mayor of a town without jurisdiction of the offense, where it appeared that the party had been ordered into custody of an officer until the fine was paid, and while in such custody the fine was paid to the officer, and the party then released. In Harvey et al. v. The Town of Olney, 42 Ill., 336, where the plaintiffs had paid a license •fee to carry on- a certain business, under a void ordinance that provided for the imposition of a fine and' a sentence of imprisonment upon a party conducting the business without a license, the court said that the mere invalidity of the ordinance would probably form no ground for recovery ox the money, if the payment was really voluntary, and that the question should have been left to the jury, and that if the money was paid under threats of prosecution, or under a belief, induced by the officers of the town, that only by payment could they escape prosecution, and was paid by them under protest, then the payment would not have been voluntary.

In Bailey v. Town of Paullina, 69 Ia., 463, the action was for the recovery of a fine and costs imposed by the mayor, under an invalid ordinance. It appeared that on the trial for the offense the accused raised no objection to the validity of the ordinance, and paid the money while under ár-rest, but without protest. The court held that, under such circumstances, the payment would be voluntary, and it was said: “It is not claimed that the defendant in the judgment was induced to make the payment through fraud, deceit or mistake of fact. It is, however, insisted that he was under duress when he made the payment, by reason of the fact that he was then under arrest. But it is not shown that the arrest had anything to do with the payment, or that the defendant was constrained or influenced thereby to make it. It is not shown that, because of the duress by the arrest, the defendant made the payment, ñor can such a thing be inferred. We may readily'presume that the defendant paid the fine and costs because he believed the judgment against him valid, and this we are required to presume, in- the absence of any showing of objection, or that the payment was made under protest. In our opinion, the Circuit Court rightly held, upon the facts presented to us, that plaintiff cannot recover.”

In Comstock v. Tupper, 50 Vt., 596, money was paid to an attorney employed to prosecute the one paying the money for unlawfully selling liquor, and was afterwards paid to the County Clerk. No warrant 'had been served, and, of course, there was no record of a fine having been imposed. A complaint, however, had been drawn, and a warrant issued. The trial court found in a suit brought to recover the money, that it was paid to save plaintiff from prosecution; that the proceedings in the settlement were illegal, but that the money having been paid to purchase the peace of the plaintiff, he was not entitled to recover it. The Supreme Court said: “This must be regarded either-as a voluntary payment in satisfaction and discharge of a claim made upon the plaintiff, or to buy off from and quiet a criminal prosecution to which he was exposed. Nothing in the character of extortion or duress is shown that relieves the transaction from the character, or the plaintiff, from the position, which we assign to them, as above. This being so, plaintiff cannot have the money back by action. See books and cases passim.”

It was held in a case in Pennsylvania that to constitute duress by imprisonment the latter must be unlawful, or there must be an abuse of, or an oppression under lawful process or legal detention; and that if there is an arrest for a just cause, but for an unlawful purpose, the party arrested, if he is induced thereby, to enter into a contract, may avoid it as one procured by duress. And where it was found that the property had been parted with under duress by imprisonment, although under legal warrant, the prosecution having been conducted for the purpose of extorting money from the accused, the property could be recovered. (Fillman v. Ryan, 168 Pa. St., 484.)

"In the case of Carver v. United States, 111 U. S., 609, the plaintiff had been convicted by a military commission of defrauding the government, and was sentenced to pay a fine, and paid the fine, and was then released. Afterward he consented that the money so paid might pass into the treasury as a credit upon his accounts. It was held that he could not recover the money either on the ground that the fine was illegally imposed or that it was paid under duress.

In McKee v. Town Council of Anderson, 1 Rice (S. C.), 24, plaintiff was fined for exhibiting certain shows in violation of a town ordinance. It was held that the money could not be recovered back; and the court said that the case did not come within the cases on the subject of money paid under color of legal proceedings, or void process, or extortion, or obtained by oppression. It does not appear that the plaintiff was under arrest when the money was paid.

An early case in Kentucky is apparently somewhat at variance with some of the cases above cited in that no consideration seems to have been given to the point whether the payment was made voluntarily or when under duress. (Stromburg v. Earick, 6 B. Mon., 578.) An action was brought against a justice of the peace to recover a fine paid to that officer in satisfaction of a sentence rendered without jurisdiction. On the ground that the plaintiff was convicted of an offense not punishable by the justice, it was held that the money could be recovered. It does not appear from the report of the case whether the fine was paid while the party was under arrest or not; but the decision apparently supports the proposition that the fine could be recovered back, upon a mere showing that the judgment was void. But in a more recent case it was held by the Court of Appeals of Kentucky that, where one who was arrested for violating a city ordinance requiring every huckster to take out a license, procured a dismissal of the warrant by taking out a license, instead of standing trial and proving his innocence, as he might have done, by showing that he came within an exception mentioned in the ordinance, the license was voluntarily paid, and could not be recovered back from the city. (Bean v. City of Middlesboro, 57 S. W., 478.)

In Maine it was held that the payment of a tax which may conscientiously be retained, with the full knowledge of all the facts, after one has been arrested for1 its non-payment, and discharged on his promise to pay it, is voluntary, and cannot be recovered back, notwithstanding informalities in its assessment. (Fellows v. School District, &c, 39 Me., 559.)

We have not. been able to examine a case said to be reported in 12 Court of Claims Reports, wherein it is said to have been decided that the payment of a fine to obtain release from imprisonment cannot be deemed voluntary. (Devlin v. U. S., 12 Ct. of Cl., 266.) And this we think is a correct statement of the law. The question in the case at 'bar is whether the payments were made to obtain release from imprisonment, and involuntarily made.

In Elston v. City of Chicago, 40 Ill., 514, the court said: “No case can be found where money has been voluntarily paid, with a full knowledge of the facts and circumstances under which it was demanded, which holds that it can be recovered back, upon the ground that the payment was made under a misapprehension of the legal rights and obligations of the party paying. And it is invariably held that a payment is not to be regarded as compulsory, unless made to relieve the person or property from an actual or existing duress imposed upon him by the party to whom the money is paid.” (See also Benson v. Monroe, 7 Cush., 125; The Town of Ligonier v. Ackerman, 46 Ind., 552.)

Now, in the case at bar, it appears that the parties accused before the justice were not arrested, nor were warrants issued for their arrest. A summons, as in civil cases, was issued and served requiring the parties to appear in three clays. They appeared, and the docket of the justice as to two of the parties recites that they each pleaded not guilty, and afterward changed their pleas to guilty after having- been duly informed of their right to waive examination to the District Court, and also their right of appeal. Thereupon the sentence of the court was as to each that he pay a fine of five hundred dollars and all costs of prosecution, and to stand committed until such fine and costs be paid; that.defendant paid fine and costs in checks and was discharged from custody. In the third case the recitals are in substance that a plea of not guilty was entered and a hearing had, and witnesses examined. Whereupon it is stated that in the opinion of the court defendant is guilty, and he was sentenced to pay a fine, and that he be held in custody by the constable until such fine be paid or he be otherwise legally discharged. Defendant gave notice of appeal, and gave a bond of $575 to secure the fine and costs, until he could get a bond of twelve hundred dollars to appear in the District Court. Said bond was furnished August 12, 1899. Later defendant paid fine and costs and the case was closed.

The prosecuting attorney who was present at the hearings had before the justice was examined as to the circumstances of the payments in the two cases first above mentioned. He stated that one of the parties asked what the procedure would be after appealing and furnishing bond, and that either the court or himself informed him the fine would be at least five hundred dollars; that he then asked permission to plead guilty, and save the trouble of putting up a bond or perfecting his appeal, and be permitted to pay the five hundred dollars; that one other of the parties asked permission to do likewise, and waive any hearing, which was granted. “They furnished the checks' under this statement.” This was brought out from the witness, who had been called by the plaintiff, on cross-examination. He was then asked the following question: “Well, you say that these parties asked permission to plead guilty and asked what the lowest fine that they .could be fined in the District Court, and that they wanted to pay that and avoid any further trouble?” The witness answered: “Yes, sir.” Question: “That is, they wanted to adjust this matter of the informations that had been filed against them for bringing sheep into the county or the State in violation of law, and stated their willingness to pay the lowest fine that could be administered in the District court and costs up to that time, and end the matter that way?” Answer: “Yes, sir.” Question: “And it was under those circumstances that the payments were made?” Answer: “Yes, sir.”

We probably know judicially that Thayne precinct is situated in what is known as Star Valley, a section quite remote from the county seat, where the sessions of the District Court are held; and there appears a reasonable ground for conceiving that the parties might have been desirous of avoiding the necessity of putting up bonds and attending at the next term of the District Court. Of course, on the matter of appeal there was a misconception of the legal status of the case. The jurisdiction of the justice seems to have been complete for the purpose of examining into the complaints, and if proper cause was found, to recognize the parties to appear before the District Court; or, in default of a recognizance, to commit them until discharged by due course of law. He was not authorized to adjudge guilt so as to pronounce sentence, and the judgment rendered was in excess of his jurisdiction, and, therefore, void.

It seems that the parties were represented by or had the assistance of one who acted for them in the capacity of attorney, or at least as an advisor; but it was attempted to be shown.that he was not a regularly admitted attorney. A reference to the recitals of the justice’s docket would seem to indicate that the magistrate was not'entirely clear regarding the procedure, since there was a strange mixture in the information given to the parties that they might waive examination or appeal. They might have indeed waived examination, and given bonds to appear before the District Court to answer for the offense charged. And, indeed, in ordinary cases an appeal lies from a judgment of the justice of the peace. • But in the case of a preliminary examination it is a misnomer at least to speak of an appeal to the higher court.

Nevertheless, the effect upon these parties would have been much the same, in their situation. Their recognizance would have been required, and, failing to furnish it, their commitment would follow.

It should be remembered that the justice had authority to hold the accused parties for trial in the District Court, and to commit them in default of bail. Had he done so, the custody by an officer would not have amounted to an unlawful restraint. The error of the magistrate was in assuming to pass sentence.

If it be true, and no contradiction of the testimony of the prosecuting attorney was attempted, that, understanding the lowest fine that could be imposed for the offense was five hundred dollars, and realizing their guilt, or not caring to contest the complaint, they expressed a willingness to pay the lowest fine provided by statute, and avoid further trouble; and, agreeable to such a desire, the justice entered up the fine, and received it; and they offered no objection or protest; there must appear to be some foundation for the District Court to have found that the payments were made voluntarily, and not under compulsion or duress, especially when it is considered that the record nowhere discloses that, in obedience to the order of the court, either of the parties were taken into custody by any officer, or that any commitment for that purpose was issued. _ They were before the justice in response merely to a summons, and had not been under arrest at any time. That is the effect of the disclosures of the justice’s docket entries; and Mr. Sammon, the prosecuting attorney, testified that no arrest was made. Indeed, it does not appear by the docket entries, nor was it otherwise shown, that a sheriff or constable was present at the hearings.

In the third case, it is evident that'the party was not in custody when the fine was paid. He had given, first, a bond to secure the fine and costs, and afterward furnished a bond for his appearance at the District Court. He need not have paid the fine. But he subsequently appeared and paid the same. It can hardly be contended that his payment was made under duress.

Unless, therefore, the solitary fact that the judgment was void, as in excess of the jurisdiction of the justice, constitutes a sufficient ground for recovering back the money paid in these cases, without objection or protest, it is doubtful, to say the least, whether the plaintiff established any right upon the merits of the action. In the two cases where pleas of guilty were entered, it may be that the proceedings ought to be construed as amounting to duress, and rendering payment of the fines necessary, in the absence of bond, to procure release from custody without any other or contrary showing; but if the payments were induced, not because of the threatened imprisonment or actual constraint occasioned by the order of the justice, but preferably to close the matter and avoid further inconvenience and trouble, without waiting on the District Court, and the justice and prosecuting attorney agreed to their expressed desires, and the record was made up accordingly, and the parties allowed to depart upon payment of the smallest penalty that could be inflicted in the proper forum, the District Court would have been warranted in finding' the payments to have been voluntarily made. We think the evidence presented a question of fact for the court’s determination in that respect. And it seems to us immaterial that the parties may have misconceived the authority of the magistrate, and believed that an appeal was the method to be pursued in reaching the District Court. There was no misunderstanding of the facts upon which the complaints were based, nor of the charge preferred against them; and, while the proceedings taken to settle the matter were irregular, and unauthorized by law, assuming the payment of the fines to have been the result of agreement, we are inclined to the opinion that the situation would not afford ground for the recovery back of the money.

In view of our decision upon the other questions involved, it is unnecessary that we express any definite cón-clusion upon the effect of the evidence on this branch of the case. We have referred to some of the authorities bearing upon the subject, and discussed it at some length, for the reason that the question may have entered into the consideration of the trial court. We will say, however, that we regard the right ■ to recover back the fines in controversy as at least doubtful, in view of all the evidence touching the circumstances attending the payment, and the situation of the parties at the time. The record does not disclose error in the judgment, and it will be affirmed.

Affirmed.

Corn, J., and Knight, J., concur.