16 Mont. 205 | Mont. | 1895
The first question presented is whether a justice of the peace who collects fees exceeding those allowed him by law, is liable in a civil action for a penalty of ten times the amount of such fees, without regard to any corrupt motive or intent in collecting them. The facts of this case show an admitted violation of the letter of the law, and a prima facie liability under its provisions. (Lydick v. Palmquist, 31 Neb. 300.)
That the justice of the peace believed he had a legal right to charge the fees he did, and acted in good faith in taxing and collecting the fees, constitute no defense. It would be most dangerous to the welfare of society if an officer elected to administer the law could violate it to his own pecuniary advantage, and escape the consequences of his act by pleading ignorance of the statute he had violated.
That ignorance of the law is no excuse is a postulate of law, but, unless the maxim is upheld, there would be innumerable problems presented to courts, and he who knew the least might fare the best; or, as is said by the supreme court of California (People v. O'Brien, 96 Cal. 171) “the denser the ignorance the greater would be the exemption from liability. ’ ’
The case is not one where there was a mistake of fact. The
The receiving of the illegal fees is the gist of the wrong under the statute, and, when such fees are deliberately accepted, the law is violated, and the liability attaches.
No less eminent a judge than Chief Justice Gibson of Pennsylvania, in an early case (Coates v. Wallace, 17 Serg. & R. 75), wherein a justice of the peace was sued for a penalty in having exacted illegal fees, wrote as follows : ‘£ The penalty imposed by this act may be incurred by exacting fees which are supposed at the times to be legally demandable. By the very words of the prohibitory clause, the taking is the gist of the offense. Ignorance of the law will not excuse in any case; and this principle is applicable, and with irresistible force, to the case of an officer selected for his capacity, and in whom ignorance is unpardonable. The very acceptance of the office carries with it an assertion of a sufficient share of intelligence to enable the party to follow a guide provided for him with an unusual attention to clearness and precision. On any other principle a conviction would seldom take place, even in cases ■ of the most flagrant abuse, for pretexts would never be want- - ing. Sound policy, therefore, requires that the officer should be held to act at his peril; and we are of opinion that the absence of a corrupt motive, or the existence of an agreement by the party injured, furnishes no justification for doing what the law forbids.”
The case of State v. Gardner, 5 Nev. 377, relied upon by respondent, was a criminal action, where the defendant, who confessedly had no criminal intent, was indicted and convicted of a felony in violating a law for improperly issuing licenses.
The defense of the silence of the appellant, Leggatt, in not informing respondent of the fact that his fees as justice were excessive, cannot obtain. The very statement of the proposition that an unsuccessful litigant is bound to advise the justice who had decided against him what the law is, illustrates the absurdity of the contention.
The respondent next argues that a tender back, when he discovered his error, should relieve him. We cannot agree with him. To so hold would be to practically nullify the whole object of the law by permitting officials who violate its provisions to escape the consequences by refunding, when their extortions were detected, or when they believed they were about to be detected. The effect would be to say to officials, “You may charge and retain all the illegal fees you can collect, and, if by chance you are discovered in taxing illegal sums, you need only refund to avoid all penalties for your errors or wrongs.” This would not do. (Turner v. Blount, 49 Ark. 361, 5 S. W. 689.)
Finally, respondent says that the payment of the excessive fees by the appellant was a voluntary one, and for that reason he cannot prevail in this suit. We seriously doubt the correctness of the contention that a payment is voluntarily made
We find nothing in the answer which demands any further construction of the statute, the main objects of which are to prevent extortion and imposition. The respondent pleads- no fraud or deception on the appellant’s part, except that, in order to bring this suit, appellant kept silent, and did not advise him what the law was. But, as said before; there is no obligation upon a litigant to advise a magistrate what his official fees are. He is naturally expected and bound to know them himself; and where his charges exceed the amount the law allows him he cannot escape the statutory responsibilities imposed, either because his extortion was the result of his ignorance, or because the victim of his extortion was more learned, yet failed to counsel him upon the law'. It is possible that the enforcement of the penalty in this case is a hardship, and it may be that the severity of the law is great; but with those matters we have not to do. The policy upon which the statute is founded is none the less wholesome; and while, in administering the law, cases occasionally arise which, under certain circumstances, constrain courts to render harsh judgments, yet, in the lapse of time, a due respect for the rigid
Reversed.
