Atwell v. Zeluff

• Decision Date: 07 November 1872
• Citation: 26 Mich. 118
• Court: Michigan Supreme Court
• Parties: Conrad Atwell v. David H. Zeluff

26 Mich. 118

Conrad Atwell v. David H. Zeluff

Supreme Court of Michigan

November 7, 1872

Heard October 15, 1872; October 16, 1872.

Error to Lenawee circuit.

Judgment reversed, and a new judgment entered for plaintiff on the finding, for the amount of the illegal exactions, with interest from suit brought, and with costs of all the courts.

A. L Millard, for plaintiff in error.

E. B Wood and C. A. Stacy, for defendant in error.

OPINION

Campbell, J.:

Atwell sued Zeluff, who was supervisor of the town of Ridgeway, Lenawee county, in an action of trespass, the cause of action being the issue by Zeluff of tax rolls for the collection of ditch taxes against Atwell, one of which he paid on demand of the collector, and the other was enforced by selling his personal property. The warrant issued to the collector, was the one required by law for the regular annual taxes, to be enforced, in case of non-payment, by sale of chattels. The ditch tax was extended on the general tax-roll.

In regard to the payment made without levy on his goods, it was objected that the payment being without protest, was voluntary. This question was somewhat discussed, but not actually decided, in the case of First National Bank of Sturgis v. Watkins, 21 Mich. 483. Where an officer demands a sum of money under a warrant directing him to enforce it, the party of whom he demands it, may fairly assume that if he seeks to act under the process at all, he will make it effectual. The demand itself is equivalent to a service of the writ on the person. Any payment is to be regarded as involuntary, which is made under a claim involving the use of force as an alternative, as the party of whom it is demanded cannot be compelled or expected to await actual force, and cannot be held to expect that an officer will desist after once making demand. The exhibition of a warrant directing forcible proceedings, and the receipt of money thereon, will be in such case equivalent to actual compulsion.

There has been some confusion among the authorities as to the necessity or effect of a protest in such cases, but the question has not often arisen upon the service of legal process. In some cases it has been intimated that it might be necessary, in order to recover back a payment from the person to whom it was actually paid, after he had paid over the money under his agency. But where the person demanding and receiving the money, does so under color of process, as a legal officer, we think the payment must be deemed involuntary, because the party paying has no legal means, by appeal or otherwise, of preventing the seizure of his property. If he has such means of redress, which would be effectual to stay the process, there is reason for making a distinction which may, perhaps, be sustained. The supreme court of Massachusetts, in Boston & Sandwich Glass Co. v. City of Boston, 4 Met. 181, citing a former case in 17 Mass. 461, refer to the absolute character of the warrant as excusing the necessity of a protest. But we think the rule of damages there adopted as to the difference of liability where there is and where there is not a protest, is also based on good sense. Where the money is not paid under protest, it is there held that no interest should be allowed until demand or action brought, so as to put the party sued in actual fault for not making satisfaction as soon as the wrong is pressed upon his notice. A payment without protest may prevent him from making inquiry and examining into the law, and while legal ignorance will not excuse an illegal demand, it may very properly qualify the extent of damages for a merely technical wrong.

The first question upon the...