State ex rel. American Manufacturing Company v. Reynolds

• Citation: 194 S.W. 878,270 Mo. 589
• Parties: THE STATE ex rel. AMERICAN MANUFACTURING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Decision Date: 28 April 1917
• Court: Missouri Supreme Court

194 S.W. 878

270 Mo. 589

THE STATE ex rel. AMERICAN MANUFACTURING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

April 28, 1917

Motion quashed (in part).

Barclay & Wallace for relator.

(1) The judgments of the St. Louis Court of Appeals are beyond and in excess of the jurisdiction of that court and should be quashed, because therein that court did not follow or apply the last previous ruling and controlling decision of the Supreme Court rendered on the identical facts, in relation to the same relator and its business. Am. Mfg. Co. v City, 238 Mo. 267. (2) The judgments under review on this writ should be quashed because they are in conflict with the last controlling decisions and rulings of the Supreme Court as to what payments are voluntary when made under protest, "in order to avoid prosecution and continue its business" to officers empowered to enforce penal tax laws. R. S. 1909, secs. 11461, 11617-18, 11646-8; Am Mfg. Co. v. City, 238 Mo. 267; Westlake v City, 77 Mo. 47; Bank v. Bank, 244 Mo. 554; Construction Co. v. Hayes, 191 Mo. 301; Loring v. City, 80 Mo. 468; Am. Brew. Co. v. St Louis, 187 Mo. 367; Am. Brew. Co. v. City, 209 Mo. 600. (3) The said judgments of the St. Louis Court of Appeals should be quashed because in conflict with decisions of the Courts of Appeals on the decisive point on which the learned opinion herein by the St. Louis court has been placed. Voelpel v. Ins. Co., 183 S.W. 681; Niedermeyer v. University, 61 Mo.App. 654; Brown v. Worthington, 162 Mo.App. 508; Link v. Real Est. Co., 182 Mo.App. 531. (4) The judgments herein reviewed as rendered by the Court of Appeals not only misapplied the above-stated law as laid down by this court, but did not apply another settled principle heretofore declared by the Supreme Court and which, properly applied, would have led to a reversal of the judgment in question, notwithstanding Claflin v. McDonough, 33 Mo. 412, on which the Court of Appeals undertook to found its decision. That principle is that moneys illegally obtained by a public officer as a condition to granting a license without which the business of the victim cannot be continued, as in circumstances here disclosed, may, in all cases, be recovered back -- being extortion and beyond the power of such officer. Loring v. City, 80 Mo. 468; Maguire v. State Savings Assn., 62 Mo. 344; Brewing Co. v. St. Louis, 187 Mo. 367; Wood v. Telephone Co., 223 Mo. 537.

E. C. Slevin for respondents.

(1) The judgment in Claflin v. McDonough, 33 Mo. 412, was clearly controlling upon the respondents and it is the last previous ruling of this court upon the law and facts involved in the case decided by them. (2) There is nothing in Am. Mfg. Co. v. St. Louis, 238 Mo. 267, to indicate that the Supreme Court has taken a broader view than that announced in Claflin v. McDonough, in cases of this character where the suit proceeds against a public officer. (3) While it may be true that unlawful exactions paid under the stress of urgent business necessity, may constitute duress, a mere threat of legal process cannot be so considered, "for the party may plead and make proof and show that he is not liable." Claflin v. McDonough, 33 Mo. 412; Wood v. Telephone Co., 223 Mo. 537. (4) If appellant deemed the exactions to be unlawful, ample remedy was afforded to it by a resort to mandamus. Butler v. Moberly, 132 Mo.App. 172; State v. Alt, 224 Mo. 493.

GRAVES, C. J. Williams J., not sitting, and Bond, J., dissents on ground of jurisdiction only.

OPINION

In Banc.

Certiorari.

GRAVES C. J.

Certiorari to the St. Louis Court of Appeals in two cases, wherein the American Manufacturing Company is plaintiff and appellant, and Louis Alt is defendant and respondent. The cases were briefed and argued together in the St. Louis Court of Appeals and disposed of by that court by one principal opinion and a per curiam opinion following the principal opinion. In the principal opinion the Court of Appeals thus outlines the case it had before it:

"Plaintiff prosecutes this appeal from a judgment against it on demurrer to its petition. The petition is in three counts. The material averments presenting the question for consideration here are the same in each count and it is, therefore, unnecessary to set forth more than one.

"The first count of the petition is as follows:

"'1. The American Manufacturing Company, plaintiff, states that it was at all times hereafter stated a corporation duly organized and incorporated under the laws of the State of West Virginia and licensed to do business in the State of Missouri and had at said times in the city of St. Louis an office and factories for the manufacture of bagging and was doing business in the city of St. Louis as a manufacturer; and that defendant, Louis Alt, is and was at said times the License Collector of and for the city of St. Louis, Missouri.

"'2. Plaintiff further states that the greatest aggregate amount of raw materials of plaintiff on hand in the city of St. Louis at any one time between the first Monday of March and the first Monday of June of the year 1908 included jute butts, in the original packages, of the value of $ 75,855, imported by plaintiff, from foreign countries, for the purpose of being manufactured by it into bagging, and then awaiting manufacture.

"'3. Plaintiff further states that said defendant demanded that plaintiff should pay (in addition to all taxes on all of plaintiff's other raw material, finished products, tools, machinery, and appliances -- which plaintiff paid), as a condition to the issuance of its license for the then succeeding year, a sum of money equal to a tax of 17 cents (imposed by the State of Missouri on each $ 100 of value of the greatest aggregate amount of raw material of plaintiff on hand in said city at any one time between the first Monday of March and the first Monday of June of the year 1908) on each $ 100 of value of said imported material; and said defendant refused to issue to plaintiff a manufacturer's license unless it paid him said sum amounting to $ 128.95; and, assuming to act by virtue of the authority vested in said office of License Collector, threatened to have plaintiff prosecuted daily in the courts of this State and daily fined for carrying on in the city of St. Louis without a manufacturer's license the business of a manufacturer; that plaintiff was not authorized to continue its business in said city without a manufacturer's license from said defendant as said Collector, and each day's continuance in business without such license was a separate offense under the laws of the State of Missouri and ordinances of the city of St. Louis; and said defendant was empowered under said statutes and ordinances to institute prosecutions against plaintiff for each day it continued its business in the city of St. Louis without said manufacturer's license, and it was impossible for plaintiff to continue in business as a manufacturer in said city without said license; and the plaintiff says that because of its liability to and the threat of such prosecutions and the duress thereby created, and the urgent business necessity of the situation, it paid to said defendant, in order to avoid prosecution and continue its business, under protest, said sum of $ 128.95, and thereupon received from said defendant a manufacturer's license for the then succeeding year; and plaintiff was compelled to make such payment in order to continue in business as a manufacturer in the city of St. Louis.

"'Plaintiff further states that, under the ordinances of said city of St. Louis, its failure to have acceded to said defendant's demand for the payment of said sum, and secured its license, would have subjected it to the liability of a double assessment of its said property by said Collector for said city's taxes, and also to a fine of five hundred dollars for each day it continued its said business in said city without said license.

"'4. Plaintiff states that at and before the time of the payment of said $ 128.95 to said defendant he, the said defendant, was advised by plaintiff that said material upon which plaintiff was so required to pay said sum was imported from a foreign country by said plaintiff and was then remaining in original packages awaiting manufacture by plaintiff; plaintiff further states that at and before said time it also notified said defendant in writing that said property was not a subject for taxation, and that same was claimed by plaintiff as wholly exempt therefrom; and that it, the said plaintiff, would institute and prosecute suit for the recovery of said sum so paid thereon.

"'5. Plaintiff further states that said defendant had no right or authority to require the payment of any sum on said imported material and that the exaction of said sum of $ 128,95 or any part thereof by said defendant under color of his office was a wrongful exaction and said sum was unlawfully collected from plaintiff by said defendant.

"'6. Plaintiff further states that it paid to said defendant said sum of $ 128.95 illegally exacted as aforesaid on the 19th day of September, 1908, and it prays judgments against said defendant for said sum of $ 128.95.'

"The court sustained defendant's demurrer to each count of the petition in the view that the taxes were voluntarily paid and not under duress."

In the brief for respondent Alt in the case before the Court of Appeals it is suggested that both parties agreed that there were two grounds averred by that demurrer, nisi, thus:

"Appellant therefore properly states the two questions for the consideration of this court:

"First Were the payments made as disclosed in the two petitions voluntary or under duress?

"Second If, under duress,...