The Hocking sentinel. [volume] (Logan, Ohio) 1871-1906, 1885-04-23

thus stated-was this payment
to prevent an immediate seizure
of the property of PLAINTIFF II
the warrant had already been
issued there would be no ques
ton, because the warrant Is in
the nature of an execution run
ming against the property of the
party. But here no warrant had
issued, none could be legally
issued for II days, nor could the
company's property be in any
way disturbed for that time. So
there was no danger of instanta-
neous seizure. On the other
hand there was no further inquiry
to be made by any officer or tri-
bunal. The amount of the tax
was fixed. The machinery for
adjusting the amount of the tax
had completed its work and was
ut rest. Only the machinery for
collecting was in motion, and it
moved with lhe certainty of fate
and the rapidity of time to the
finality of payment, or seizure
and sale. When the law is i'm
perative, fixing the amount and
commanding its collection, must
an individual wait until the last
moment and pay only just as the
officer is seizing his properly. or
may he assume that the officer of
the law will obey its precepts,
and when the tax roll is in the
hands of the treasurer, waiting
only the lapse of few days to
ripen into a warrant and seizure.
that he will perform his duty and
proceed to collect. May he not
then pay to the treasurer. pro-
testing against the legality ?
Does he not pay to prevent an
immediate seizure, one that is
certainly and presently pendings
Where does the State suffer
wrong or disadvantage by hold
ing that to be an involuntary
payments
In Union Bank vs. New York.
81, Barb. 159. The Trial Court
held that payment of an illegal
tax under a notice from the re-
ceiver of taxes, that unless paid,
penalty would be imposed and
a warrant issued. was a voluntary
payment. But the Court of Ap-
peals, 81 N. Y. 63S, reversed the
decision and held it was not a
voluntary payment, and in the
decision reversing the trial
Court. the Court Of Appeals say:
The tax had the full force and eft
feet of a judgment requiring the
plaintiff to pay the tax az requir-
ed by statute. Under such cir
cumstances the plaintiff had the
right to pay without affecting his
right to recover back. 1t is not
necessary that tie warrant should
have issued. If he expected.
and had a right to expect. that in
due course of time the warrant
would issue, and the collection
be enforced with costs, and that
unless he complied with the one
alternative, he must submit to
the,,other, it is not such voluntary
payment that he would be pre-
cluded from recovering back the
taxes paid. if they were illegal. |
But the Supreme Court of Ohio |
have settled the question as to !
what is and what is not a volun-
tary payment, in a recent case,
decided in October, 1854, and to
appear in the 42d O. S Reports,
Peters, Kicker 4 CO: vs. Marietta
l. Gin. Il. R. Co., reported in Ohio
Law Journal of December, 1884.
This was an action to recover
back illegal overcbarges for
transportation of freights over
defendants road, running tbro'
several months and years. and
where the -freights were paid
monthly by agreement Of the
parties. l will only qnote the I'd
paragraph of the syllabus of the
case:
"A shipper has the right to
have his goods transported at le-
gal rates over the usual line of a
common carrier of such goods
and if, to procure the services of
such carrier, the shipper is COM
pelled to pay illegal rates estab-
ished by the carrier, the pay
ment is not such a voluntary pay
ment as will preclude recovering
back the illegal charge ; nor will
it preclude such recovery if the
payments, by arrangement of
parties, are made at the end of
each month";
Here the necessity of the ship
per to have transportation, and
The power and control of the Il.
r. Co. over the shipper by its
ability to refuse to convey his
'reights. are considered to be suf-
icient duress to make the pay
nent Of the illegal demands in
voluntary.
And this rests upon the fact
hat the parties do not stand up
On the same level. The shipper
has no adequate means of re-
1ress, or resistance to the illegal
demand of the r. r. Co., which
could be moved with sufficient
celerity to save him from the loss
hat must inevitably follow.
The same principle applies to
An officer of the law, having the
power to seize property for the
nonpayment of a pretended tax.
The private citizen is not on the
same level, but must respect the
demands of the law, and depend
upon an appeal to the courts.
whose duty it is to in'erprit the
law, to COMPEL that justice which
he is powerless himself to en-
force.
l will not take the time or space
to discuss the question of the Inn
itation contained IN section 5S48,
for the simple reason that the ac-
tions brought in this county are
not brought under that statute.
r. A. CONSTABLE.
Athens, April 81, 1885.
Col. Wall, the handsome and gen.
eral editor of the Gallopolis Journ-