Town of Belzoni v. Luckett

Beed, J., delivered the opinion of the court. Ida Lucjiett, a colored woman, was convicted in the mayor’s court of the town of Belzoni on a charge of unlawful sale of intoxicating liquors in violation of an ordinance of the town, and fined two hundred and fifty dollars, which amount was paid by her. She brought this suit for one hundred and fifty dollars, claiming that the mayor was only authorized by law to impose a fine' of one hundred dollars, and that she was entitled to recover from the town the excess. The full amount had been turned in to the treasury of the town. By statute (section 3348 of the Code of 1906) a municipality is authorized “to pass all ordinances, and to enforce the same by fine not exceeding one hundred dollars, or imprisonment not exceeding thirty days, or both.” The town of Belzoni claims that appellee should not recover, because the payment of the fine was voluntarily' made under a mistake of law. The proof shows that after the fine had been imposed, and while she was in custody, she was told by the mayor [267] that she would he sent to the convict farm if she did not get the money and pay the fine by four-forty p. m. on that day. She thereupon sent for the money and paid the fine. It is a general rule that money paid by a party tó liberate his person from illegal detention by an officer claiming the authority to detain him may be recovered back in an- action for money had and received, on the ground that the payment was compulsory or by duress or extortion. Dillon’s Municipal Corporations, vol. 4, par. 1619. The case of Merkee v. City of Rochester, 13 Hun (N. Y.) 157, was an action to recover money alleged to have been wrongfully extorted from plaintiff for the benefit of the city by a police justice. In that case, as in this, the magistrate exceeded his jurisdiction.. A penalty was imposed, and in default of payment the defendant was to be imprisoned. There was a choice of making the payment or going to jail. It was held that the facts presented a clear case of payment under duress. It was also held in the same case that the judgment was void, because it did not appear that the common council had made any direction for which those found guilty of violating ordinances should be imprisoned, and also because the charter of the city authorized an imprisonment in the county jail and not in the ■county penitentiary. In that case the judgment was for imprisonment in the penitentiary. In the case at bar the magistrate imposed a punishment upon appellee which was not authorized by law. The judgment in this case is certainly void as to all of the fine imposed in excess of the amount authorized by the statute. It is only necessary for us to decide this in order to hold that there may be a recovery in this case; for we are clearly convinced that the payment was made by appellee under duress. Affirmed.