Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1878-03-06

il is now the uniform rule in all the
States that when a public officer in
his official capacity as such de-
mands of person the payment OF
void tax, and collects it by means
of the use of threats of imprison-
ment of the body of the person
upon whom the demand is made,
and the party upon whom the de-
mand is made, is not allowed day
in court, but has no alternative but
to submit to arrest in the event OF
his refusal to pay such payment, so
much is compulsory.
But it is contended by counsel
for defendant that in the case at
bar, the plaintiff had a day in court
and there is a great conflict of
opinion among counsel as to what
legally amounts to day in court.
1t is said by counsel for defendant
that if plaintiff had refused pay
ment Of the illegal demand in this
case, and the Marshal had arrested
him, he would have been taken in
to court and tried upon the war;
rant, and there had an opportunity
to show to the court that the de-
mand was illegal and that he would
have a remedy against the Marshal
for false imprisonment.
To this the plaintiffs counsel re-
piled that the Imprisonment of the
plaintiff would have been actually
before the question of
the legality of the tax could have
been judicially determined.
I am not able to find anywhere
in the books a definition of the
term "day in court" In my judg-
ment party may be said to have
a day in court when the law has
provided a legal remedy which the
party may invoke, by means of
which the legality of any demand
made upon him by another may be
iudicially determined and adjudged
before any seizure of the property.
Dr. Imprisonment of his person can
happen as result of his refusal to
pay such demand. To hold other
wise would be to decide that be-
ore a party upon whom such de-
nand is made, can legally contest
he demand he must submit to the
ndignity of arrest and imprison-
nent of his person and be taken
before a police magistrate. The
person arrested is not lawyer and
Knows nothing about the forms or
measures necessary for him to
ldopt in order to make his defence,
md he is therefore put to the
necessity and expense of employ |
ng a lawyer to conduct his cause.
1he lawyer will ask and obtain an
adjournment in order to give him
ime and opportunity to prepare
lis clients defense. During this
ime the accused continues in custo-
Iy, his business and reputation
uffer in consequence, at last his
ase is tried before the magis-
rate, who, as a rule, is uneducated |
n the law, and although the illegali-
y of the Imprisonment might be
to lawyer, it might not
,e to the magistrate who would
hereupon find the accused guilty
nd sentence him to fine or i'm
'risonment, which penalty the ac-
used must pay or take the case
o an appellate court. If he does
he latter he must go to further
Expense for lawyer and during
he interval the accued must re-
nain in Jail, or if he is fortunate
nough to have friends who will
'ail him out he will be let to bail,
mt in either case he must
emain in legal duresse during the
interval pending the appeal. The
lie and liberty of the American
itizen are his most valued right,
nd the law guards the liberty of
he citizen more jealous than it
Ioes property, but in this State it
las been repeatedly held that where
N assumed tax which has no foun-
lation in legal right is demanded of
he citizen and its payment obtained
~ threat of the public officer, that
lnless payment be made he will
eize upon the property of the
.itizen, and the officer being in a
position to carry out his threat,
uch payment may be recovered
Jack in an action of assumpset.
N the case at bar, the Marshal