Van Buren v. Downing

LyoN, J.

In Morrill v. The State, 38 Wis., 428 , we held that ch. 72, Laws of 1870, was not in conflict with any provision of the state or federal constitution, and especially ¿hat it was not a regulation of inter-state commerce, but was purely a police regulation, which the legislature had power to enact. Hence we sustained a conviction of the plaintiff in error, an agent of the Singer Sewing Machine Co., for a violation of its provisions in the execution of his employment. It was proved in that case, and will be assumed in the present case, that such company is a corporation of another state.

When the decision was announced, we were not aware of the fact that, but a short time before, the supreme court of the United States had held, in Welton v. The State of Missouri, since reported in 91 U. S., 275 , that a statute of Missouri “ discriminating in favor of goods, wares and merchandise which are the growth, product or manufacture of the state, and against those which are the growth, product or manufacture of other states or countries, in the conditions upon which their sale can be made by traveling dealers,” is in conflict with the power vested in congress to regulate commerce with for *127 eign nations and among tbe several states; and further, that tbe non-exercise by congress of tbe power to regulate commerce among tbe several states is equivalent to a declaration by that body that such commerce shall be free from any restrictions.

Our statute has been amended with tbe design of obviating tbe defects therein disclosed by tbe decision in Welton v. Missouri (Laws of 1876, eb. 395); but as tbe statute stood when tbe defendant collected tbe license fees of the plaintiff, it made tbe same discrimination in favor of certain residents of tbe state as did tbe Missouri statute, by authorizing such residents to deal as hawkers and peddlers, without license, in their own work or production manufactured or grown in this state.

Welton v. Missouri furnishes an authoritative construction by a competent tribunal of a provision of tbe federal constitution, by which we bold ourselves bound. Hence we must bold that cb. 72, Laws of 1870, before the amendment, was invalid, and that the plaintiff was not legally liable to pay tbe license fees exacted by tbe defendant.

But it is claimed on behalf of tbe defendant, that it does not necessarily follow that the plaintiff must recover of tbe defendant tbe amount of such license fees. It is said that tbe payment was made voluntarily, that is, it was not made under protest, and no notice was given to tbe defendant that tbe plaintiff would bring suit to recover back tbe fees thus paid; and that tbe money was paid into tbe state treasury before tbe action was brought; and upon these facts it is claimed that tbe defendant is not liable.

"We think tbe findings of fact by tbe court are sustained by tbe evidence. It is claimed on behalf of tbe plaintiff, that it does not appear that tbe license fees were paid into tbe state treasury. It was proved that in June, 1875, tbe sum of $80.50 was paid into tbe state treasury as license fees on account of “-Yan Burn,” and that afterwards tbe defendant tendered to the plaintiff a license, but tbe latter did not *128 accept it; also that tbe defendant paid tbe fees collected of tbe plaintiff to bis superior officer, tbe treasury agent. It is fair to presume that the license so tendered was issued by tbe secretary of state, and that he did not issue it until be had the proper evidence that tbe license fees bad been duly paid into tbe treasury. In other words, it must be presumed, in tbe absence of proof to tbe contrary, that tbe secretary complied with tbe statute (Laws of 1872, ch. 177, sec. 2), and withheld tbe license until tbe fees were so paid.

Moreover, we have little doubt that tbe “-Yan Burn ” above mentioned, and the plaintiff, are one and tbe same person. Tbe similarity of surname and tbe agreement of date and amount go far to establish this hypothesis.

We have then this state of facts: Tbe defendant, being tbe assistant treasury agent, charged with tbe duty of enforcing tbe payment of license fees, demanded of the plaintiff tbe payment of such fees by virtue of a statute which had not tljien been adjudged invalid, and which, if valid, rendered tbe plaintiff liable therefor. Tbe plaintiff asked for time in which to obtain tbe money, but tbe defendant refused to grant it, and threatened to seize tbe plaintiff’s property for tbe fees unless they were paid on that day (see sec. 15, act of 1870), and thereupon tbe plaintiff paid tbe same, and tbe money thus collected was paid into tbe treasury of tbe state as tbe statute required.

There is no evidence that tbe plaintiff denied bis liability to pay tbe fees, or that be informed the defendant at any time that be should bring suit to recover back tbe amount tlius paid; and it cannot be doubted that tbe defendant acted I in perfect good faith, and in tbe honest performance of what be believed to be bis duty as a public officer.

We are to determine whether, under these circumstances, tbe defendant is liable in this action. We think this question is answered in tbe negative by tbe cases cited by the learned counsel for tbe plaintiff to sustain tbe opposite view. Elliott *129 v. Swartwout, 10 Pet., 137 , was an action against the collector of customs to recover back an excess of duties paid to him bj the plaintiff. The case went to the supreme court on a certificate of the disagreement of the judges of the circuit court, and the following is one of the questions certified: “ Whether the collector is personally liable in an action to recover back an excess of duties paid to him as collector, and by him in the regular or ordinary course of his duty paid into the treasury of the United States; he, the collector, acting in good faith and under instructions from the treasury department; and no protest being made at the time of payment, or notice not to pay the money over, or of intention to sue to recover back the amount, given him? ” On this question the court, by Thomp-soN, J., says: “ The case put in the second point is where the collector has received the money in the ordinary and regular course of his duty, and has paid it over into the treasury, and no objection made at the time of payment, or at any time before the money was paid over to the United States. The manner in which the question is here put, presents the case of a purely voluntary payment, without objection or notice not to pay over the money, or any declaration made to the collector of an intention to prosecute him to recover back the money. It is therefore to be considered as a voluntary payment, by mutual mistake of law; and, in such case, no action will lie to recover back the money. The construction of the law is open to both parties, and each is presumed to know it. * * To make the collector answerable, after he had paid over the money without any intimation having been given that the duty was not legally charged, cannot be sustained upon any sound principles of policy or of law. There .can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, and put him on his guard by requiring him not to pay over the money.” And many English cases are cited in the opinion in support of the doctrine thus asserted.

*130 Cary v. Curtis, 3 How., 236 , was also an action against a collector of customs to recover back money illegally exacted for duties. But in tbat case the money was paid under written protest. The court fully and unanimously affirmed the doctrine asserted in Elliott v. Swartwout, and a majority of the court (Justices Stout and MoLeAN dissenting) held that since the passage of the act of congress of March 3, 1839, ch. 82, sec. 2, which required collectors of the customs to place to the credit of the treasurer of the United States all money which they should receive for uncertain duties paid under protest, an action of assumpsit for money had and received would not lie against the collector for the return of such duties so received by him. i

In Erskine v. Van Arsdale, 15 Wall., 75 , under subsequent legislation by congress, which we understand restores the right of action against the collector in such cases, it was held that “ taxes illegally assessed and paid may always be recovered back if the collector understands from the payer thai the taxes are regarded as illegal, and that suit will be instituted to compel the refunding of them.”

The law is thus stated by SpeNcbe, J., in Hearsey v. Pruyn, 7 Johns., 179 : “An action may be sustained against an agent who has received money to which the principal had no right, if the agent has had notice not to payitover; andinsome cases the action has been sustained where no notice was given, if it appears that the money has not actually been paid over.”

We are also referred to 1 Parsons on Contracts, book 1,' ch. 3, sec. 12 (6th ed., p. 78); but the authority is not in point. The general doctrine- there enunciated is, “ that ujhere money is paid to one as agent, to which another as principal has color of right, the right of the principal cannot be tried in an action brought by the party paying the money against the agent as for money had and received to the use of such party; but such action should be brought against the principal.”

Cartwright v. Rowley, 2 Esp., 725, and Preston v. Boston, *131 12 Pick., 7 , were actions against tbe principals, and no question of the liability of an agent receiving money for his principal and paying it over to him is involved in either case. Were this an action against the state to recover back the license fees illegally collected of the plaintiff, Preston v. Poston, might be in point on the question whether the plaintiff paid such fees under duress of his goods.

But we think that question is not material here, for we have found no case which holds that mere duress of goods without protest or denial of liability or notice of intention to bring suit to recover back the money exacted, is sufficient ground to sustain an action against an agent to recover back such money after the agent has paid it over to his principal in good faith. The strongest cases in that direction which have come to our notice, are Ripley v. Gelston, 9 Johns., 201 , and Frye v. Lockwood, 4 Cow., 454 . In the former case it was held that a collector of customs was liable for duties illegally exacted by him, although he had paid- the same over to the United States, when the money was extorted as a condition for granting a clearance, and was not paid with the intent or purpose that the collector should pass it to the credit of the United States. In Frye v. Lockwood it was held that an action could be maintained against one who bad aided an assistant marshal in wrongfully collecting a fine of the plaintiff under pretense that it was a court-martial fine, although the money had been paid over to the marshal, it having been proved on the trial that the defendant had no interest in the defense, but that it was conducted by the marshal or secretary of war. Between those cases and the present case the difference is obvious. Here there was a mere threat of seizure in case the fees were not paid on that day, but there was no protest or claim that the fees were not lawfully due, or notice not to pay over the money or that suit would be brought to recover it back; and it was paid with the intent and purpose that it should be paid into the state treasury.

*132 Tbe doctrine of Elliott v. Swartwout, supra, is also asserted in many of tbe cases cited by tbe learned counsel for tbe defendant, some of wbicb are referred to above.

Tbe only case cited on bebalf of tbe plaintiff, not above considered, is that of Wright v. Eaton, 7 Wis., 595 , wbicb, briefly stated, is as follows : Wrigbt was tbe agent of a firm in New York to collect a note against Eaton beld by tbe firm. Wrigbt collected tbe note of Eaton, and exacted from bim a sum in excess of tbe amount of tbe note, wbicb sum Wrigbt applied for tbe benefit of bis principals. Eaton sued Wrigbt before a justice of tbe peace for sucb excess, and recovered judgment against bim tberefor by default. Tbe time allowed by statute in wbicb to appeal having expired before Wrigbt learned of tbe judgment, be brought suit against Eaton in equity to enjoin tbe collection thereof. The answer of Eaton avers (and such was probably tbe fact) that a portion of tbe note was collected by a sale of bis property on execution, and that Wrigbt failed to allow bim the whole amount of the]proceeds of tbe sale properly applicable to tbe payment of tbe note, and by another sale of bis property again collected tbe sum wbicb ought to have been allowed, but was not, on tbe first sale. That sum equals the judgment wbicb Eaton recovered against Wrigbt, and wbicb tbe latter sought by bis action to have annulled.

Mr. Justice Smith, who delivered tbe opinion of tbe court, after stating tbe rule to be that a court of equity will not enjoin tbe collection of a judgment unless it appears that tbe same is contrary to equity and good conscience, and is not based on any substantial cause of action, proceeded to say that “ it by no means appears that tbe j udgment obtained by Eaton against Wright was unjust, or at least inequitable, in tbe proper sense of that term. On tbe contrary, a review of tbe facts in tbe case, we apprehend, would go far to establish a contrary conclusion. Tbe fact that tbe claimant obtained this money (for which tbe judgment sought to be enjoined was *133 rendered) as an agent, if wrongfully obtained, cannot absolve Him from bis liability to tbe person from whom it was thus wrongfully obtained, although he had paid it over to his principal. Story on Agency, §§ 308, 309; Lane v. Cotton, 12 Mod., 488; Richardson v. Kimball, 28 Me., 464; Story on Agency, §§ 311, 312, 313 et seq., and authorities cited.”

In that case no general rule is laid down in respect to the liability of agents in a case like this. The court only held that under the facts of that case Eaton’s judgment against Wright was not inequitable, even though Wright had paid over the money for which he was sued, to his principals, before Eaton brought his action. We do not question the soundness of’that decision. Wright knew that he was forcing a double collection of Eaton without right or authority to do so. He was guilty of a misfeasance or willful, positive wrong, by which Eaton was injured; and all of the authorities agree that in such a case the liability of the agent to the injured party is absolute. He cannot shield himself from such liability by delivering to his principal the fruits of his wrong. The case was decided upon that ground, as a reference to the authorities cited by Mr. Justice Smith: abundantly shows.

In the present case, however, the defendant collected the license fees in good faith, and both parties acted under a mutual mistake of law.

We conclude that the judgment of the circuit court should be affirmed.

By the Gourt. — Judgment affirmed.