C. & J. Michel Brewing Co. v. State

• Decision Date: 04 April 1905
• Citation: 19 S.D. 302,103 N.W. 40
• Parties: C. & J. MICHEL BREWING COMPANY, Plaintiff, v. STATE OF SOUTH DAKOTA et al., Defendant.
• Court: South Dakota Supreme Court

19 S.D. 302

103 N.W. 40

C. & J. MICHEL BREWING COMPANY, Plaintiff,

v.

STATE OF SOUTH DAKOTA et al., Defendant. South Dakota Supreme Court Original action Dismissed Joe Kirby and Miller & Wolf Attorneys for plaintiff. Philo Hall, Attorney General A. W. Burtt Attorneys for defendants. Opinion filed April 4, 1905

HANEY, J.

It is established by the pleadings that the plaintiff is a Wisconsin corporation engaged in manufacturing and selling lager beer and other malt liquors; that to facilitate the sale of its manufactured products in this state it operated warehouses or depositories at Sioux Falls, Salem, and Redfield; that it paid the state as license fees, under the provisions of chapter 72, p. 203, Laws of 1897, $300, about April 29, 1897, and $1,800 about July 1st in each year from 1897 to 1900, inclusive; that no part of these sums has been repaid; and that the plaintiff’s claim was presented to and rejected by the State Auditor before this action was commenced. The law under which these license fees were collected, so far as applicable to nonresident manufacturers, was declared to be unconstitutional on December 4, 1900. State v. Zophy,(1900). These allegations of the complaint are denied by the answer:

“(6) That each and all of said payments so made by this plaintiff as aforesaid were made under protest, menace, and duress, and in especially that said defendant did, through its officers and agents, threaten the unlawful confinement of the persons of the agents of this plaintiff engaged in handling its products at the cities aforesaid, and did threaten to arrest, detain and confine this plaintiff, through its agents and servants, under such unconstitutional law, and thereby such arrest and confinement would be fraudulent, harassing, and oppressive, and did threaten immediately to close up and to seize the property of this plaintiff in this state, and sell the same, and prevent this plaintiff from doing business in this state; that by such acts great an irreparable injury would have been done to the plaintiff, and in especially that its trade in is products would have been broken up and dissipated to others, and the large trade which plaintiff had by long and energetic effort on its part and expensive advertising built up would have been completely lost, the value of none of which could be with a reasonable degree of certainty established, and by reason of which facts great and irreparable injury would have been done to this plaintiff, an but for such acts and threats on the part of the said defendants, as aforesaid, this plaintiff would not have made said payments.

(7) If, in making any of the payments above set forth, there was an apparent consent, such payments were ma e under a mistake sufficient under the laws of this state to render the plaintiff’s apparent consent invalid, and in especially that said plaintiff and defendant, each laboring under a mutual misapprehension of said chapter 72 of the Laws of 1897. and believing the same to be valid and binding law of this state, said defendant, the state of South Dakota, demanded from this plaintiff, and this plaintiff did make the payments, as aforesaid, when in truth and in fact said law was invalid and unconstitutional, and said defendant had no right or authority to receive said sums of money from the plaintiff.

(8) That each and all of said payments made as aforesaid were made under protest, and with notice to the said defendant that, if said sums were accepted, suit would be brought to recover the same back.”

The law governing these original actions against the state provides that when the defendant has answered this court shall proceed to hear and determine the cause. If an issue of fact shall arise which the court shall deem necessary to be tried by a jury, it shall certify such issue to the circuit court, and such court shall proceed at its next regular term to try the same by jury as in other cases. Rev. Code Civ. Proc. § 27. Following the procedure thus prescribed, the issues made by the pleadings in this action were certified to the circuit court within and for Minnehaha county, “with authority and direction to proceed at the next regular term of such court to try such issues of fact by submitting under proper instructions to a jury duly impaneled and sworn, as in other cases,” certain specified interrogatories. Notwithstanding the explicit order and direction of this court (which constituted the only authority of the circuit court to act in the premises) to submit the issues involved to a jury, the record discloses that the parties waived trial by jury, and stipulated that the issues of fact might be tried by the circuit court. It requires no argument to show that orders of this court cannot be thus modified or abrogated by the parties. These actions cannot be maintained against the state without its consent. They can be prosecuted only in the mode prescribed by the statute; and it is extremely doubtful whether issues of fact in such cases can be determined otherwise than by this court itself, or by a jury in the circuit court to which such issues are certified. Whether this be so or not, it is clear that consent of parties is not in itself sufficient to confer jurisdiction upon the circuit court to determine the facts, especially where: this court has expressly directed that they shall be determined by a jury. It is equally clear that a judgment in this action, predicated upon the findings of the learned circuit court, would be clearly erroneous, if not absolutely void. Therefore the decision of the circuit court must be ignored, and the issues again certified, or this court itself must proceed to hear and determine he same. As all the evidence taken before the circuit court was preserved and has been presented in the form of a bill of exceptions, it has been deemed advisable to hear and determine the action upon such evidence.

An examination of the pleadings will disclose that the plaintiff seeks to recover upon two distinctly inconsistent grounds, namely: (1) That plaintiff’s payments were made under compulsion and protest, with notice that suit would be brought to recover the same; and (2) that they there made under a mutual mistake of law, the plaintiff and the representatives of the state believing that the law was constitutional and valid. In other words, plaintiff seeks to prove that the payments were at the same time both voluntary and voluntary. This is manifestly impossible. If the payments were made under the mistaken belief that the law was valid, they could not have been made under the belief that the law was unconstitutional, with intent to sue for their recovery. The plaintiff should have been required, by motion, to elect upon which of these inconsistent theories it would proceed. That, however, was not done, so the evidence will be considered with reference to both contentions. From all the testimony preserved in the bill of exceptions, this court finds the facts to be as follows: Each payment at Sioux Falls was made by a local representative of the plaintiff, acting under its instructions, to the county treasurer, upon the latter’s suggestion that such payment was necessary to enable the plaintiff to continue its business. The words “paid under protest” were noted on part of the treasurer’s receipts for the money on request of the plaintiff’s local representative. Each payment at Salem was made under substantially the same circumstances, except that the words “Paid under protest” were noted on the treasurer’s receipts at his own suggestion. At Redfield the plaintiff was represented by a local attorney, who contended that the law was invalid. “Various county officers” contended “it read plain enough for them,” and declared that the license must be paid or plaintiff’s depot would be closed and its agent arrested. At neither place was any one arrested. No legal proceedings were ever instituted to enforce the law against the plaintiff, or to punish it or any of its employes for its violation. No written protest was ever filed with any public officer, or written notice given that the plaintiff intended to sue for...