C. & J. Michel Brewing Co. v. State

Citations

• 19 S.D. 302
• 70 L.R.A. 911
• 103 N.W. 40
• 1905 S.D. LEXIS 41

Syllabus

<p>1. Where, in an action against the state for a claim disallowed by the auditor, the Supreme Court, under Rev. Code Civ. Proc, l 27, certified the cause to a circuit court, with directions to submit the issues of fact to a jury, the,parties cannot by consent confer jurisdiction on the circuit court to determine the facts, and a judgment predicated on the findings of the court is erroneous, if not void.</p> <p>2. Where, in an action by a nonresident to recover taxes paid under Laws 1897, p. 203, c. 72, imposing an annual tax on nonresidents having wholesale establishments for the sale of liquors in the state, the complaint alleged that the payments were made under protest with notice that suit would be brought to recover the same, and that they were made under a mutual mistake of law, plaintiff and the state officers believing that the law imposing the tax was valid, the court, on motion, should require plaintiff to elect on which claim he will proceed, the allegations being inconsistent.</p> <p>3. A nonresident paid the taxes imposed by an unconstitutional law (Laws 1897, p. 203, c. 72,) imposing an annual tax on nonresidents having wholesale establishments for the sale of liquor in the state. When the first payment was made he was represented by counsel, who insisted that the law was unconstitutional. Held, that none of the payments were made under an honest telief on the part of plaintiff that the law was valid, and hence a mutual mistake of law on his part and the officers of the state did not exist.</p> <p>4. A payment by a nonresident of the taxes imposed by an unconstitutional law (Laws of 1897, p. 203, ,c. 72) imposing annual taxes on nonresidents for wholesale establishments for the sale of liquors in the state, made because req uired by the officers of the state as a condition precedent to his right to continue the sale of liquors without subjecting himself to the penalties prescribed by the statute, is hot made under duress, and cannot be recovered.</p>