Harvey & Boyd v. the President

• Decision Date: 30 November 1866
• Parties: HARVEY & BOYDv.THE PRESIDENT AND BOARD OF TRUSTEES OF THE TOWN OF OLNEY.
• Court: Illinois Supreme Court

42 Ill. 336

1866 WL 4693 (Ill.)

HARVEY & BOYD

v.THE PRESIDENT AND BOARD OF TRUSTEES OF THE TOWN OF OLNEY.

Supreme Court of Illinois.

November Term, 1866.

APPEAL from the Circuit Court of Richland county; the Hon. AARON SHAW, Judge, presiding.

The opinion of the court contains a sufficient statement of the case.

Mr. SILAS L. BRYAN, for the appellants.

Messrs. BOWMAN & CALLAHAN, for the appellees. Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action of assumpsit, brought by the appellants against the president and trustees of the town of Olney, to recover back the sum of $600, which the plaintiffs paid to the town, as they allege, under compulsion. It appears, that, on the 27th of March, 1865, the town passed an ordinance, requiring any person exercising the business of a substitute broker or recruiting agent in said town, to pay to the treasurer of the corporation the sum of $600, on the payment of which sum a license was to issue authorizing the person paying the same to carry on said business for the term of three months. The ordinance further provided, that any person engaged in said business without a license should be fined $100 and be imprisoned one hundred days for each day in which he should prosecute said business. After the passage of the ordinance, the appellants, who seem to have been engaged in the business thus sought to be prohibited, called on the treasurer and paid the $600 under protest, stating at the same time that they would bring suit to recover back the money. The treasurer gave his official certificate of the payment of the money, upon which the town clerk issued a license.

It is not claimed by the counsel for the appellee, that the town of Olney had any power to enact this very extraordinary ordinance, but, it is insisted, that the ordinance being void, the payment under it must be considered as voluntary, and therefore not to be recovered back. If the payment was really voluntary, the mere invalidity of the ordinance would probably form no ground of recovery, and this question should have been left by the court to the jury. The court instructed for the plaintiffs as follows:

“That if you believe, from all the proof and circumstances before you, that the plaintiffs, at the time of paying the $600 in question, were bound to do so or suffer prosecution from the defendants, and that at the time of paying the same they did so unwillingly and under protest, and that under such protest the defendants received the $600, the plaintiffs have in this action a right to recover back the sum, with six per cent interest.”

This instruction gave the law very fairly to the jury, but its effect was substantially destroyed by those given for the defendants, which were as follows:

“1. If you believe, from the weight of evidence, that the money was paid by the plaintiffs to Hayward, treasurer of the town of Olney, incorporated by the name of ‘the president and trustees of the town of Olney,’ before any ordinance in regard to license spoken of had been posted ten days, then the payment was not a payment to said corporation; the treasurer of the corporation could not, by receiving the money, make the corporation liable for money so received by him.

2. The corporation cannot be held liable in law for any money paid to the treasurer of the corporation, unless the same was due said corporation under some ordinance passed and in force at or before the time of payment.”

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