First National Bank v. Watkins , 1870 Mich. LEXIS 112 ( 1870 )

Campbell, Ch. J.

The plaintiff in error complains of a judgment rendered against him for money illegally collected of the defendants in error under color of a warrant from the Auditor General, issued for a specific tax under the law of 1867,' charging specific taxes on national banks. The grounds of defense set up are that the payment was voluntary, and that a portion of the money was paid over into the State Treasury.

The case is freed from some of the difficulties which are occasionally met with in similar ■ controversies, inasmuch as the process was not one which related to any of the. ordinary duties of the plaintiff in error, as Sheriff of the county. It was issued under a special statute, applicable to but one subject, and showed on its face the source and extent of the authority asserted, by referring expressly to the legislative act. This was held to be unconstitutional in Smith v. First National Bank of Tecumseh, 17 Mich. R., 479. The warrant in this case was the same as in that, and the Sheriff of Lenawee County, acting under such an instrument, was held responsible in trespass for making a levy to collect it.

The writ, being bad upon its face, made any one seeking to enforce it a wrong-doer, and any money obtained under it being unlawfully obtained, he had no right to pay it into the Treasury, and such payment would not exonerate him. No relationship of principal and agent could exist under a law which was null, and the case cannot be likened to that of an innocent agent, who without personal fault receives money by mistake and transmits it to his principal. The immunity belonging to such transactions does not extend to wrong-doers.—Story on Agency, § 301, and cases cited; Steele v. Williams, 20 Fng. L. & Eq., 319; Snowden v. Davis, 1 Taunt., 359.

The payment in this case cannot be regarded as voluntary in any proper sense. It was made under the threat of the immediate and effectual enforcement of the illegal warrant. The authorities are quite uniform that where such a demand is made under color of office and the payment is made under protest, the money may be recovered back, under all circumstances, from the person extorting it. The only question that appears to have been mooted is whether' any protest is necessary, where the entire exaction is illegal on its face. The doctrine is beyond controversy that when the entire claim is unlawful, and the money is taken under color of public office, an action lies for its recovery.—Steele v. Williams, 20 Eng. L. & Eg., 319; 2 Greenl Ev., § 121 and notes; Morgan v. Palmer, 2 B. & C., 729; Story on Agency, § 307; Barnes v. Foley, 5 Burr., 2711; Frye v. Lockwood, 4 Cow., 454; Elliott v. Swartwout, 10 Pet., 137; Bend v. Hoyt, 13 Pet., 263. The principal object of the notice or protest seems to be to warn the officer not to pay over the money. As the protest was made in the present case, there •is no occasion to consider its legal necessity, in order to hold an officer who has paid over to another.

There is nothing in the authorities to warrant the argument that there must be any technical duress,'or that the party imposed upon must resort either to violent or legal remedies to prevent the execution of the'process, or to recover property he allows to be seized under it. No payment can be regarded as voluntaiy, and no one can be regarded as unduly negligent in making it, when the party sees fit to comply with the illegal demand, while protesting against its legality. He has a right to assume that the officer will do what he threatens to do, and no principle of public policy will compel him to use means of protection, when he prefers peaceful submission, and a resort to a civil action. The judgment must be affirmed with costs.

The other Justices concurred.