The Hocking sentinel. [volume] (Logan, Ohio) 1871-1906, 1885-04-23
The Scott Law Decisions
A LAWYERS OPINION.
| For the Sentinel.l

lFOr the sentinel.
The question of The right o
the parties who have paid th'
assessment under the so-callet
Scott law, 10 recover the same
: back from the individual to whom
payment was made has been de
. cide1 in the 7th Judicial Dis
trict by Judges Wright and Rus
sell upon demurrer, and by Judg,
Friesner upon an agreed state
ment of facts; and the cases de
ci led by Judge F. were carried
to the Circuit Court in Hooking
county, and a decision had there
which seems to be variously IN
terpreted by those interested in
the question. 1t is claimed by
!. some that the Common Pleas
Judges have been fully sustain
ed by the Circuit Court, and that
therefore. so far as this District
is concerned, the question is reas
adjnaicata. | do not so under
stand the decision Of the Circuit
Court.
In order to fairly determine
this point, it is necessary to know
what each Court has in fact held
learn from Judge Wright that
he held, upon demurrer, That
whore the party paid the assess
ment after the decision by the
Supreme Court in The State VS..
Fsame, (holding the law 10 be
CONSTITUTIONAL and before the
decision in The State VS. Sinks,
reversing State VS. Frame, and
holding the law unconstitutional)
tAat it could not be recovered
back. because it was paid under
a law pronounced constitutional
at the time of the payment.
What other points were decid-
ed by Judge Wright, if any, l
am not advised. This PROPOSE
ton the Circuit Court in Hook
ing county squarely reversed, if
the Court is properly reported in
the Sentinel of April Cd, (and l
understand the Sentinel to be
good authority upon any subject
it attempts to represent.) Judge
Friesner appears tc have leaned
strongly to the same views held
by Judge Wright, viz: that a
payment made after the Supreme
Court had declared the law con-
stitutional, and before the subse-
duent decision by the same Court
declaring it unconstitutional,was
bar to recovery by the payor.
But he bases his opinion princi-
pally upon the ground that by the
agreed statement of facts in those
particular cases, the payment
was voluntary. Not knowing
what were the facts as agreed
upon in those cases, l am bound
to assume that upon this point
the Judge was right-especially
as that is the sole ground upon
which the Circuit Court sustains
his decision. fhe following is
the substance of the decision of
Tho Circuit Court in Hooking co
as reported at the time by the
Sentinel
Judge Bradbury delivered the
opinion in the Scott Law Liquor
cases.
The court held that it was no |
defense to an action by liquor
dealer to recover from the COun-
ty Treasurer the assessment paid |
by him under the Scott Law
That he had made the payment |
after the Supreme Court of the
State had declared the law con-
stitutional, and before the rendi-
ton of the subsequent decision
of the same court declaring it
unconstitu!io al.
The court hehl further, that
from the agreed statement of
facts made by the parties TO the
cases submitted to the court, it
that the several pay
menls which were the subject of
the action had been voluntarily
made and for that reason could
not be recovered from the Trea-
surer.
The Court, however, rested its
decision respecting this point
upon the facts as they had been
agreed upon by the parties, and
did not pass upon the question
whether reasonable apprehcn-
sion that the Iemedy of distress
provided for i'm the law might be
resorted 10 by the Treasurer, and |
the twenty per cent. penalty all
ded,w sufficient TO make il pay
ment of the tax induced by the |
fear thereof, an involuntary one,
in the absence of any threat or
act OF the Treasurer to proceed /
in that way.
By this il vii! he seen that The
Court expressly say that the fact
Of payment after. the Supreme
Court had declared the Scott law
constitutional. and before the
same Court had declared it to be
unconstitutional. is no defense
upon an action to recover back.
And that the Court did not pass
upon The question whether the
terms of the law, adding 20 per
cent. if moi paid by the 2Gth day
of June, and requiring the Trea.
sn-er 10 proseed, forthwith, to
collect both The assessment and
penalty, together with a reason
able apprehension that the law
would be enforced. was, or was
moi, such duress as would entitle
The payor to recover back, money
so paid.
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