Ferguson v. Butler County

• Decision Date: 02 February 1923
• Citation: 247 S.W. 795,297 Mo. 20
• Parties: HARRY FERGUSON, Appellant, v. BUTLER COUNTY et al
• Court: Missouri Supreme Court

247 S.W. 795

297 Mo. 20

HARRY FERGUSON, Appellant, v. BUTLER COUNTY et al

Supreme Court of Missouri

February 2, 1923

Appeal from Butler Circuit Court. -- Hon. J. F. Woody, Special Judge.

Affirmed.

Sheppard & Sheppard for appellant.

(1) The finding of the trial court herein should have been for appellant on the ground that the agreement to pay, and the payment of, the excessive sum of $ 1500 upon the fine of $ 10,000 imposed by it in the criminal prosecution, was made under duress. Simmons v. St. Louis, 192 S.W. 394; American Mfg. Co. v. St. Louis, 192 S.W. 399; Niedermeyer v. Curators of University, 61 Mo.App 654; Brewing Company v. St. Louis, 187 Mo. 377; State ex rel. v. Reynolds, 194 S.W. 878; Link v Real Estate Co., 182 Mo.App. 536; Brown v Worthington, 162 Mo.App. 508, 516; Wiliford v. Eason, 110 Ark. 303, 161 S.W. 498; Maxwell v. Griswold, 10 How. 242, 256; Swift v. United States, 111 U.S. 28, 4 S.Ct. 247; Roberts v. Frank Bros., 132 U.S. 17, 10 S.Ct. 5; Gaar, Scott & Co. v. Shannon, 223 U.S. 468, 56 L.Ed. 510; Devlin's Case, 12 Court of Claims, 266; Merkee v. City of Rochester, 13 Hun, 157; United States v. Rothstein, 109 C. C. A. 521, 187 F. 268. Appellant maintains that he agreed to pay, and did pay, the sum of $ 2500 under protest; but admitting for the sake of argument that such payment was made without formal protest, still he is entitled to recover. Brewing Company v. St. Louis, 187 Mo. 379; Westlake & Button v. St. Louis, 77 Mo. 47. (2) The finding of the trial court herein should have been for appellant on the ground that so much of the judgment in the criminal case as assessed a fine in excess of $ 1000 was illegal, without authority of law and void. Ex parte Page, 49 Mo. 291; Ex parte Crenshaw, 80 Mo. 447; Ex parte Holliway, 199 S.W. 412; Ex parte Creasy, 243 Mo. 679, 708; Ex parte Craig, 130 Mo. 590; Ex parte Arnold, 128 Mo. 256; In re Bonner, 151 U.S. 242, 38 L.Ed. 149; In re Mills, 135 U.S. 263; United States v. Pridgeon, 153 U.S. 49, 38 L.Ed. 631; 16 C.J. 1312, 1313; State v. Feilen, 70 Wash. 65; Madden v. State, 67 S.W. 74; State ex rel. v. Reed, 132 Minn. 295; In re McNeil, 68 Kan. 366; In re Paschall, 56 Kan. 123. The imposition of a fine in excess of the sum prescribed by the statute is analogous to the imposition of a fine under a void statute. In each instance the court acts without jurisdiction; in the former, it has no jurisdiction to assess a fine in excess of the sum prescribed by statute; in the latter it has no jurisdiction of the prosecution for an alleged violation of law. A conviction under a void statute or ordinance is a nullity. Ex parte Taft, 225 S.W. 457.

John A. Gloriod and Francis M. Kinder for respondents.

(1) The judgment assessing a fine of $ 10,000, and the payment of the sum of $ 2500 was entered into by agreement, was a voluntary payment by the appellant with full knowledge of the facts, and the excess cannot be recovered back. State ex rel. v. Stonestreet, 92 Mo.App. 214; Robins v. Latham, 134 Mo. 466; Teasdale v. Stoller, 133 Mo. 645; Trust Co. v. Bank, 154 Mo.App. 108; Claflin v. McDonough, 33 Mo. 412; Slover v. Rock, 96 Mo.App. 335. Money paid under a mistake of law cannot be recovered back. Corbin v. Adair County, 171 Mo. 385; Morgan v. Joy, 121 Mo. 683; Hethcock v. Crawford County, 200 Mo. 171; Wingerter v. San Francisco, 66 P. 730; Buchanan v. Sahlein, 9 Mo.App. 552; Benson v. Monroe, 61 Mass. 125; Gould v. McFall, 118 Pa. St. 455. (2) Where the court assesses a fine larger than permitted by law and the fine is paid, the payee cannot maintain an action for the recovery of the excess. Bailey v. Inc. Town of Paullina, 29 N.W. 418; Harrington v. City of New York, 81 N.Y.S. 667. (3) The judgment is for the right parties for the reason that appellant is not entitled to recover against respondents in the present action. They are simply trustees of a trust fund, and the action is not brought against them as trustees. Cedar County v. Johnson, 50 Mo. 225; Ray County v. Bentley, 49 Mo. 236; Marion County v. Moffett, 15 Mo. 604; Knox County v. Hunolt, 110 Mo. 67.

DAVID E. BLAIR, J. Graves, David E. Blair, Walker and Ragland, JJ., concur; James T. Blair, J., concurs in result; White, J., dissents; Woodson, CJ., dissents in separate opinion.

OPINION

In Banc.

DAVID E. BLAIR, J.

Suit to recover back part of a fine imposed upon and paid by plaintiff (appellant here) upon a plea of guilty in a criminal prosecution. Trial before Hon. J. F. Woody, Special Judge, sitting as a jury, resulted in a judgment for defendants. The County of Butler being a party defendant, the appeal comes to this court.

Many of the facts are covered in the finding of facts made by the trial judge, which is as follows:

"1. That on the 22nd day of December, 1916, the Prosecuting Attorney of Butler County, Missouri, filed in the office of the clerk of said county his information, duly verified, in which he charged the above named Harry Ferguson with a felony, to-wit, with assault with intent to kill.

"2. That from said information as it appeared when offered in evidence in this case, the charge was, when first written that of an assault to kill with malice, but that the same had been changed so as to charge the offense as being willful and without malice. Whether this change, or amendment, was made before or after the information was filed, does not appear.

"3. That between the filing of the information and the entry of the plea thereto, William Ferguson, an uncle of defendant, Harry Ferguson, and one W. B. Adams went to the prosecuting attorney and had an agreement with him by which Harry Ferguson was to enter a plea of guilty and be fined in the sum of $ 10,000.

"4. After this arrangement had been made, counsel was employed to represent Harry Ferguson in said cause.

"5. That on the 4th day of January, 1917, and during the regular January Term, 1917, of the Circuit Court of Butler County, Missouri, the defendant, pursuant to said agreement, entered a plea of guilty to the charge and his punishment was fixed by the court at a fine of $ 10,000, $ 2500 to be paid at once, $ 2500 in ninety days, and the remaining $ 5000 to be remitted upon proof of good conduct for a period of two years.

"6. That the plea of guilty was entered by agreement of the parties with a full and complete understanding of all the facts and of the amount of the fine. Pursuant to the conditions of the judgment fixing the fine, Harry Ferguson paid the sum of $ 2500 thereon.

"7. That the entry of the plea of guilty and the payment of the said sum of $ 2500 were both voluntary acts on the part of Harry Ferguson.

"8. That the $ 2500 so paid on the fine was, by the sheriff of said county, paid to the county treasurer, and by him placed in the Capital School Fund of said county.

"9. That no motion for a new trial, motion in arrest of judgment, motion to correct the judgment, motion to reduce the fine, no application for an appeal from said judgment was filed, nor any other steps taken in the case of State of Missouri v. Harry Ferguson, except that, some time after, the court remitted the balance of the fine, to-wit, $ 7500."

Upon the foregoing facts, shown entirely by the evidence offered by the plaintiff, the trial court found the issues and rendered judgment in favor of defendant. Section 4482, Revised Statutes 1909 (Sec. 3263, R.S. 1919), under which the information was drawn when plaintiff entered his plea of guilty and the fine was assessed, did not provide any maximum fine, and hence the maximum fine is the sum of $ 1,000 as provided by Section 4911, Revised Statutes 1909 (Sec. 3700, R.S. 1919). It seems that the prosecuting attorney, the trial judge who imposed the fine and counsel for plaintiff overlooked said Section 4911. Certainly plaintiff and his lay advisers did not know of its provisions. Plaintiff did not learn that the maximum fine fixed by the law was $ 1000 until he was so informed while he was in France with the American Expeditionary Forces. Upon his return he demanded re-payment of the excess of $ 1500, and upon refusal of the county court of said county to allow the claim, suit was filed against said county and against the judges of the county court and the county treasurer. The plaintiff relies for a recovery on two grounds. First, that he paid the excess under duress, and, second, that the circuit court was without jurisdiction to assess against him a fine in excess of $ 1000 and all the judgment in excess of that sum is void.

I. The trial court found that the plea of guilty was entered by agreement, with full knowledge of all the facts of the amount of the fine agreed upon, and that plaintiff's acts in entering such plea and making the $ 2500 payment were voluntary. The information, as originally drawn and probably as filed, charged a crime then punishable only by imprisonment in the state penitentiary from two to ten years. Conviction meant a term in prison. Plaintiff, standing then before the bar as the accused, saw an opportunity to compromise with the prosecuting attorney. The amount of the fine was fixed by agreement. Ignorant of the legal limit plaintiff doubtless thought he was making a good bargain when he swapped a probable penitentiary sentence for a fine payable $ 2500 in cash, $ 2500 in ninety days and the balance of $ 5000 only to be paid conditionally. He was no more under duress than he would have been had the prosecuting attorney contended that he would secure the maximum sentence in the penitentiary from the jury and, rather than take such chance, he had agreed to plead guilty and take the minimum term of two years in prison. Such arrangements are commonly made between the prosecutor and the accused and, when approved by the trial judge, are carried out. In telling plaintiff...