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

r of June, under protest, and no
voluntarily, the sum Of 5000, &c
and that the law under Whicl
said money was collected va
unconstitutional and void.
The facts relied upon in these
cases were that the law required
payment Oh or before a specified
Fday, and that a failure to so pa,
rendered the party liable to I
penalty of 20 per cent, and re
quired the Treasurer to collec
forthwith, both the assessment
and penalty with costs, and tha
to save the penalty and costs
that would follow an enforced
collection under the terms of the
statute, the plaintiff was com
PEELED to pay, and did pay, the
amount assessed, BUT NOT VOL.
UNFAIRLY.
Te this pleading a general de.
murrer was interposed, and sus
tanned by Judge Russell in both
Athens and Gallia. Judge r.
held-that the payment was vol.
untary, because no penalty could
attach, or enforced collection be
made on that day-that the party
had the whole of that day free
from the power of the Treasurer
10 disturb his property, &C. He
also held that the provision OF
the statute requiring the addition
of a penalty, and immediate col
lection, if not paid, did not
amount to fuch duress as would
render payment to prevent the
same involuntary, where no pro-
cess had been issued or distraint
made to enforce payment.
And further, that when twelve
months had elapsed after pay
ment, and before suit brought,
the claim is barred by the limita-
tion in section 5S4S, of Revised
Statutes.
Now I submit tn 1t Judge Rus
sci has not been sustained by the
Circuit Court i'll Hooking county
In any of the points by aim de-
cide1, whatever may be the flu
tare action of that conrt; for the
reason that the questions decided
by Judge Russell were not before
the Circuit Court. As l under
stand their decision, they express
ly say-they do not pass upon
the question whether a reason
able apprehension that the rem
edy of distress provided for in
the law would be resorted to by
by the Treasurer, and the penalty
added, was sufficient to make
payment Of the assessment by
the fear thereof, an involuntary
payment, in the absence OF any
threat or act OF the Treasurer to
proceed in that way.
The question of the statute Of
limitation has not been before
the Circuit Court. living shown,
Ito my own satisfaction at least
that as to a majority of the cases
pending for the recovery of Scott
law money in this.circuit. the
question is still an open question
in the Circuit Court.
l ought, perhaps. to stop, hav-
ing already exceeded the bounds
of an ordinary newspaper article.
Yet l cannot refrain from max !
ing a few citations and quoting
from opinions rendered by sew
eral courts Of last resort in re-
spectacle States, to show how
mad wrong even learned Judges
may become in deciding legal
propositions and in applysng le-
gal principles.
The right to recover back mon
ey collected or received by a !
public officer, colore off ii,
wherethe law under which |
it was collected is un-
constitutional, has been repeat
edly declared by the highest
courts in Kansas. Michigan, Yer
mont, New York and Ohio.
Let me quote the language of
the count in 1st National Bank of
Sturgis VS. Watkins, 21st Mich
igan, 4S3.
This was an action to recover
back an illegal tax on the Bank.
the Law having been declared un-
constitutional.
In deciding the case, Campbell. |
Chief j., uses this language -
1.-The authorities are quite uni
form that where such a demand
is made under color of office, and
tee payment is made under pro-
test, the money may be recover
ed back under all circumstances
from the person exacting it. The
is beyond controversy.
that where the entire claim is un
lawful, and the money is taken
under color Of public Office. an
action lies for its recovery. There
is nothing in the authorities to |
warrant the argument that there
must be any technical duress."
The Court cite in support of
this opinion--Steel VS. Williams,
20 Eng. L. & Eq. s19. Q Green
leaf Ey. l2l Il notes-2d B & c.
729. Story on Agency. sec 3O7. |
Borus Us Foley 5. Barr Oil. |
FRYE VS. Lockwood 4 crows, 454,
10 Peter 1877, 13c Pet 263.
In Allen VS.. The City of Bur-
liugton, 45, Vermont 202. The
Court say: If plaintiff was con-
strained to pay the tax to save
his property from distress and to
AVOID penalty and costs, it was
not a voluntary payment, and it
is not necessary to wait for the
issue of a warrant, &c. The
Court cite Babcock VS. Granville,
A VI. 326. and Harvey VS. Clus-
ter, 18th VT. 469, in support of
this doctrine.
In ,he ease of the Kansas Pa
cjfic r r. Co VS. Commissioners