State v. Reynolds

• Decision Date: 30 March 1917
• Docket Number: No. 19635.,19635.
• Citation: 194 S.W. 878,270 Mo. 589
• Parties: STATE ex rel. AMERICAN MFG. CO. v. REYNOLDS et al., Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

194 S.W. 878

270 Mo. 589

STATE ex rel. AMERICAN MFG. CO. v. REYNOLDS et al., Judges of the St. Louis Court of Appeals.

No. 19635.

Supreme Court of Missouri. In Banc.

March 30, 1917.

Motion for Rehearing Overruled April 9, 1917.

Motion to Modify Judgment Overruled April 28, 1917.

Certiorari in two cases by the State, on relation of the American Manufacturing Company, against George D. Reynolds and the other Judges of the St. Louis Court of Appeals, to review the decisions of said Court (184 S. W. 1167, 1169), affirming judgments for defendant in cases wherein relator was plaintiff and Louis Alt defendant. Part of opinion of Court of Appeals quashed, but judgment affirmed.

Barclay & Wallace, of St. Louis, for relator. E. C. Slevin, of St. Louis, for respondents.

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 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 prosecution 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 $500 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, is the respondent personally liable for the amounts so paid?"

It is clear that these two questions were in the case. As best we read the Court of Appeals' opinion, it holds that there was no duress, but that, even if there was duress, the officer is not individually liable. Contentions pro and con will be noted in the opinion.

I. It is argued that the Court of Appeals' opinion conflicts with views expressed by this court in American Manufacturing Co. v. City of St. Louis, 238 Mo. 267, 142 S. W. 297. The conflict, if there be a conflict, lies within a narrow compass. In 238 Mo., supra, we had a case wherein the city was sued for taxes which it had received, and wherein it was alleged that the payment of them had been made through duress. Brown, J., in that case assumed as true, without discussing, the question of duress. The only mention thereof is in this language:

"Defendant collected the three items of taxes last hereinbefore mentioned, aggregating $2,161.34. Payment thereof being made under duress and to avoid prosecution under defendant's ordinance, and the defendant having received into its treasury $1,578.26 of said taxes, this action is brought to recover same."

It is true that the allegations as to duress in that case are substantially as they are in the record now before us. However, in that case the plaintiff was suing the city which actually received and held the taxes, whereas in the case at bar the suit is not against the state, which actually received and has the money, but against the official who collected it and turned it over to the state. At least in some respects the two cases are not parallel. But on the simple question of duress they must be held to be the same. The pleadings are the same in effect, if not in exact language. The Court of Appeals in its opinion relies upon the case of Claflin et al. v. McDonough, 33 Mo. 412, 84 Am. Dec. 54, and says that we did not broaden the rule there announced in American Manufacturing Co. v. City of St. Louis, 238 Mo. 267, 142 S. W. 297. Whilst we did not fully discuss the doctrine of duress in 238 Mo., supra, we have had occasion to refer to that case and to fully discuss the question. In the case of American Manufacturing Co. v. City of St. Louis (No. 18185) 192 S. W. 399, October term, 1916, of Division 1 of this court, Brown, Commissioner, with a full concurrence of the court, well said:

"It is admitted in the argument that the levy of the tax on this imported material was in violation of section 8 of article 1 of the Constitution of the United States vesting Congress with the power to regulate commerce with foreign nations, and therefore void. The only questions remaining in the case for our consideration are: (1) Whether this tax was paid under such circumstances of duress or compulsion as entitles the plaintiff to recover it back from the city; and (2) whether, if plaintiff is entitled to recover it, it should have interest on the amount before judgment.

"The appellant says that, under the facts shown, the...