Territory of New Mexico v. Newhall

OPINION OP THE COURT. MILLS, C. J. In the decision of this case but a single point is involved, viz.: Can the Territory recover the commissions paid to Newhall, he not being entitled to them, when the payments to him were made under a mistake of law, both plaintiff and defendants knowing all of the facts in the case. There are only three grounds on which a suit can be maintained to recover back money paid; to-wit: Fraud, mistake or duress. Lamborn v. County Commissioners, 97 U. S. 191. In the case at bar fraud or duress are not charged. Mistake, in order to be a ground of recovery, must be a mistake of fact, and not of law. Such at least is the general rale. Hunt v. Rousaminere, 1 Pet. 1; Bilbie v. Lumley, 2 East 183; 2 Smith Lead Cases, 398 (6th ed. 458), notes to Marriot v. Hampton. A voluntary payment, made with a full knowledge of all the facts and circumstances of the case, though made under a mistaken view of the law, cannot be revoked, and the money so paid cannot be recovered back. Clarke v. Dutsch, 9 Cow. 674; Eage v. Koontz, 8 Pa. St. 109; Boston and Sandwich Glass Co. v. City of Boston, 4 Met. 181; Benson v. Monroe, 7 Cush. 125; Milnes v. Duncan, 6 Barn. & Cres. 671; Lamborn v. County Commissioners, 97 U. S. 181; Elliott v. Swartout, 10 Pet. 150. In a recent ease in Missouri, decided as late as the 3rear 1905, the supreme court of that state holds the law to be: “That money paid through a mistake of fact may be recovered in an action for that purpose. * * * But in all such cases the mistake must be one of fact and not of law, for all persons are deemed to have notice-of the law. * * * rtl|e sta-{;e¿ j^g been, uniformly followed in this state in reference to all kinds of payments, including taxes, licenses and claims, and the doctrine is firmly established that payments made with a full knowledge of all the facts constitute voluntary payments and cannot be recovered, and that mistake or ignorance of law gives no right to recover.” American Brewing Company v. St. Louis, 187 Mo. 367. This case has been annotated in 2 Am. & Eng. Annotated Cases 822, and in it a number of Missouri cases are cited in support of this legal proposition, which in fact seems to be the acknowledged law of the land. The rule as set out in 30 Cyc. 1313, is that “except when it is otherwise provided by statute, the gen-oral rule is that a voluntary payment made under a mistake or in ignorance oi the law, but with full knowledge of all the facts, and not induced by any fraud or improper conduct on the part of the payee, cannot be recovered back, and in so far as this rule is concerned, there is no difference between ignorance and mistake of law. It applies to a corporation as well as to a natural person, and in equity as well as in law.” A long line of authorities are quoted in support of this rule. To determine this case, -we will have to ascertain just how the payments in controversy were made. The legislature of this Territory passed an act prescribing the duties-of sheriffs in regard to liquor and gaming licenses, which Act was approved March 9th, 1901, and became a law on that date. The Act was somewhat obscure, and the several counties in the Territory did not act uniformly in paying their officers for the collection of this tax, some of them paying both the sheriff and treasurer four per cent of the amounts collected for such licenses, while other counties only paid the sheriff four per cent for such collections and paid the treasurer nothing. As shown on page 18 of the brief of the appellees, filed on August 31, 1908, the Solicitor General, then the highest law officer of the Territory, on May 2, 1901, gave a written opinion, which was generally circulated through the Territory, in which he held that both the sheriff and the collector were entitled to retain a commission of four per cent on licenses collected for the sale of liquors and tire running of games of chance. A case involving the question as to who' was entitled io receive the commission for the collection of these licenses was brought before us, and this court decided unanimously on June 29th, 190G, in the case of Hubbell v. Board of County Commissioners of Bernalillo County, 13 N. M. 546, that a county treasurer was not entitled to a commission upon moneys collected for gaming and liquor licenses during the period between March 9, 1901, and March 14, 1905, when a new law regarding compensation of certain county officers was passed. This decision of our Supreme Court set at rest all doubts as to who was entitled to the commission for tbe collection of gaining and liquor licenses. An examination of tbe record before us shows that the defendant, Newhall, made regular reports to the Board of County Commissioners, in which he reported the several amounts collected by him, and the County Commissioners certify that they have checked the accounts submitted to them with the books of the said Newhall, as treasurer, and that said accounts are correct. The books of the treasurer show that he had deducted the four per cent from the license money paid to him by the sheriff, who originally collected the same. It appears in fact from the certificates in the transcript that a regular audit was made before the account of the treasurer was approved by the Board of County Commissioners. The Board of County Commissioners is the body which approves or disapproves the reports of the treasurers in their several counties, and by Section 671, Compiled Laws of 1897, an appeal lies to the District Court, and may be taken by any person whose claim may be disallowed in whole or in part by that Board. In the case at bar we can come to no other conclusion but that the four per cent'commission on the gaming and liquor licenses, were paid to Newhall under a mistake of law. In truth it is not contended that the payments were made on account of any fraud, duress or mistake of fact, and under the law, .as above set out, such payments having been made under a mistake of law, we are of the opinion that the court below very-properly instructed the jury to return a verdict in favor of the defendants, appellees herein. There being no error in the judgment of the court below, the same is therefore affirmed; -and it is so ordered. Cooley and Mechem, A. J., did not hear the argument in the case and took no part in this decision.