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lie. Jackson v. Brookins, 5 Hun. 533. "It is true," say the court in that case, the statute does not in express terms give the right of action upon the cause of death. It does not define the injuries meant to be or enumerate them. It says generally, 'injuries to person, property or means of support, in consequence of the intoxication of any person.' If death ensues as the natural and legitimate result of the intoxication, it is covered by the language of the statute; all injuries are covered that are consequent upon the intoxication. If death were excluded, then the minor and temporary injuries would be provided for, while the greatest and most permanent of all would be excluded. The statute should not be so construed. It admits of the other construction, and that is more consonant with its benign purposes. Its main object was to provide a remedy for cases before remediless. Had it been confined to injuries to person or property, it might have been said that only those injuries were meant to be covered for which there was before then a remedy against the intoxicated person. But when it provided for injuries to means of support, it made actionable a new class of injuries without remedy at common law, and unprovided for by any previous statute." See, also, Lawson's "Civil Damage " Laws, § 9; Emory v. Addis, 71 Ill., 6 Ch. L. N. 335; Mason v. Shay,7 Ch. L. N. 152; Krach v. Heilman, 4 Cent. L. J. 233; Schroder v. Crawford, 1 Month. Jur. 574; Smith v. Reynolds, 8 Hun. 123: Bednore v. Newton, 54 N. H. 117, 2 Cent. L. J. 363.

THE LIABILITY OF COUNTIES, CITIES AND TOWNS TO PAY BACK ILLEGAL TAXES VOLUNTARILY PAID.—II

Public Policy is a very vague and unsatisfactory criterion. The courts condemn it, both when sitting at nisi prius and in banc, and though both trial and appellate courts disregard, so-called, metaphysical objections on arguments, yet it would be difficult to find anything more far-fetched in metaphysics than the doctrine which the courts sometimes carry out under the name of public policy. Judge Cooley seems to think that the rule which precludes the bona fide tax-payer from recovering what is illegally exacted, but voluntarily paid in manner and form as herein descanted upon, is "a rule of public policy," and he adds, as

we have seen, "it is a rule of quiet as well as of good faith, and precludes the courts being occupied in undoing the arrangements of parties which they have voluntarily made, and into which they have not been drawn by fraud or by accident, or by any excusable ignorance of their legal rights and liabilities." He seems to think that "public policy" in the argument has a different basis than the rule of quiet, etc., for he offers both as separate and distinct arguments. Perhaps "public policy" does say so, but it must be a very absurd and unwise policy, and it has no principle of law to sustain it. The policy that sustains it is a mere figment of imagination, without substance and without form, which Hegel himself, prince among metaphysicians that he was, could not understand or make definite. Let us look at the supposed rule of quiet that is to be subserved by this doctrine. That which is to be collected is taxes, and the best rule of quiet is that which will insure the collection of taxes as quickly and easily as possible, that is to say, with as little difficulty as possible. The principles of law we contend should be as favorable to this end as practicable. Hence, it were better to establish a principle which would insure to tax-payers the right to recover back illegal taxes voluntarily paid, than to require a protest or a compulsory payment to give such a right. For if protests or compulsory payments alone give such a right, there will be very few taxes paid in time to come except under protest or under compulsion; unless, indeed, as is implied by some of the authorities cited by Mr. Burroughs, the compulsion should be so hazardous to the taxpayer's finances or property as to make the payment of the illegal exactions the lesser evil -in which latter event law would indeed be a mockery, to this extent. In truth, however, in suits against cities, towns and counties, the fact of protest can and ought to have no significance, it is a meaningless form; hence in such cases compulsion alone can excuse. We now give briefly a resume of some of the authorities cited by Burroughs to show what is essential to constitute such compulsion as will warrant a recovery. In Lester v. Baltimore, 29 Md 415, it is decided that the mere demand of the tax by the officer does not constitute such compulsion so as to make the payment compulsory. See, also, Taylor v. Board of Health, 31 Penn.

St. 73. In Cook v. Boston, 9 Allen, 393, where the license was paid for under protest, the payment was held to have been voluntary. In Fellows v. School District, 39 Me. 559, where a party arrested for non-payment of the tax was released on his promise to pay, and paid the tax and costs afterward, it was held that the payment was voluntary. In the case of Phillips v. Jefferson Co., 5 Kas. 412, the court appears to have held, that where land had been sold for non-payment of taxes, and deeds were about to be made, to prevent the issue of the deeds the taxes and costs were paid, this payment was held to be voluntary. And in Town of Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, the general rule is stated as follows: "It is well settled that the mere existence of the ordinance would not render the payment compulsory. The money must have been exacted by the appellee under a threat of prosecution, and the money must have been unwillingly paid and under protest. It is settled by the following authorities, (citing quite a number) that a mere apprehension of legal proceedings is not sufficient to make a payment compulsory, and that where there is a threatened prosecution the payment must be made under protest." We think these illustrations fully warrant us in affirming that if taxpayers can not recover back the illegal exactions herein referred to, from counties, cities and towns, without such compulsion as is contemplated by the authorities, the future collection of all kinds of taxes, will become a difficult matter, and by no means subserve any real rule of quiet; or if the compulsion should become too hazardous to risk, we feel warranted in saying that the state, county, city and town between them 'may tax ad libitum, in fact may as well in one straightforward act take all the goods and property the community has, and say no more about it.

The rule of quiet which Judge Cooley and the authorities he relies on contemplated, was an illusion, in so far as it relates to the class of cases we are discussing. If it formed the basis of public policy, then it would seem that public policy would advocate quite the opposite of what is obviously a rule of quiet, We go further, and claim that it is opposed to

what the same should consist. We think that what we shall now say will recommend itself to good sense, to reason, and to every reasonable person's experience. We offer the following paragraph as being consistent with com

mon sense:

With the enormous burden of taxation imposed upon the community in the United States, which eats up in a short time the value of property, and consumes almost entirely the annual profits of the country, is it not abominable to hold a doctrine such as that contended for by Cooley and Burroughs? If the taxpayer must be ground to death, and if, when a tax is declared or found illegal, he is to be precluded from recovering it back because he acted in good faith, and gave the government no trouble, and placed no obstacle in the way to its enjoyment of the revenues, by paying it voluntarily, let us at once abandon the principle that "the good of the people is the supreme law," and place another principle before the world in its stead; let us declare, 'in plain English, that the property of the people is owned solely and entirely for the government. If the courts favor such a principle, it is not too much to say they favor an outrageous imposition-an imposition hardly to be tolerated; which may be permissible in Turkey, but not here. Why-and to this we refer especiallyis the tax-payer who withholds his taxes, and gives the government the most trouble in the collection of her revenues, so long as he does it under cover of law process, to be preferred to the good-faith tax-payer, who places no such obstacles in the way, and acts in all respects like an exemplary citizen! Where is the boasted maxim, "the law loves to put an end to litigation?" And why? Because he acted in this exemplary manner? We claim so, for it will not do to say that the officer was any less to blame for accepting the tax than the tax-payer to pay; on the contrary, it was the officer's duty to accept nothing but legal taxes, and to this end it was his duty to know the law. When he accepted the illegal taxes or exactions, he was more to blame than the taxpayer, for the obligation lay upon him to interpret and understand the law correctly, and to know what taxes he should collect because legal, and what taxes not to collect because illegal. Judge Cooley mentions something about this doctrine he affirms, precluding the courts being occupied in undoing the arrange

ments of parties which they voluntarily made, etc., and mentions something about its being a rule of good faith. We might understand from his language that it is a rule of good faith because it prevents the courts from being thus occupied, but as that involves a petitio principii, we suppose he does not mean that. Courts very frequently have undone arrangements resting on a similar principle to that governing this class of cases, and very often when there was less to warrant the same. Courts exist to undo that kind of arrangements; for that we pay legal taxes to support our judges and our other court officers.

We have seen that in principle it is not, despite Cooley, Burroughs, and the authorities they cite, either a rule of real public policy, of quiet or of common sense, to affirm the doctrines they advance as applicable to the class of cases under discussion. We have seen, also, that it is not supported in principle by the proper application of that maxim which says that "ignorance of the law does not excuse. We now proceed to a consideration

of the better authorities:

In City of Galveston v. Sydnor, 39 Tex. 236, it was held that "" money collected as taxes by the city of Galveston, under an ordinance not authorized by its charter, may be recovered by suit at law, whether the tax was paid under compulsory process or not. The court, per Walker, J., there say: "It would be contrary to good conscience for the city of Galveston to retain the money collected from the appellee without authority of law, and where there is a wrong the law should furnish a remedy." In Underwood v. Brockman, 4 Dana (Ky.), 314, the principle was laid down, "that where it is clearly established that a party having a full knowledge of the facts of his case, erroneously believes that he is under a legal liability, and upon that belief and that consideration only, enters into a contract, when in truth no legal liability results from the facts, he may be relieved in chancery, upon the ground of a mistake of the law." Robertson, C. J., delivered the opinion of the court-a jurist whose decisions stand deservedly high. The case of Ray v. Bank of Kentucky, 3 B. Monroe, 510, was an action of assumpsit, brought by the plaintiffs to recover back money paid to the bank of Kentucky in ignorance of their real liability. The court, per Ewing,

C. J., there took occasion to say: "It has long been a controverted question whether a party could avail himself of his mistake or ignorance of the law merely, as a ground to exonerate himself from his civil obligation, or to rescind an executed contract or recover back money paid. Able authorities, in England and in the American States, may be found upon both sides of the question. This court took occasion to examine many of those authorities, in the case of Underwood v. Brockman, 4 Dana, 309, and in this case we have not only reviewed the authorities there referred to, but have examined many others in the English courts, as well as in the courts of here to refer to those authorities, but will rethe states of this Union. We will not stop

fer to two able numbers in the American Jurist, Vol. 23, pages 143, 371, in which all the authorities upon both sides of the question are collected and compared, and the affirmative of the question maintained with distinguished ability. The review which we have made has confirmed us in the opinion that the principle settled in the case of Underwood v. Brockman is correct and ought to be sustained. We admit that there may be a difference between executory and executed contracts; between the promise to pay and the payment of money, or, rather, that it would require a more palpable case of mistake of law

* * *

or of fact to rescind an executed contract or to recover back money paid, than to resist the payment or enforcement of performance of an executory contract. But the principle is the same in both classes of cases; the difference is in the degree or force of evidence necessary to make out or sustain the case. Upon the whole, we would remark that whenever, by a clear and palpable mistake of law or fact essentially bearing upon and affecting the contract, money has been paid without cause or consideration, which, in law, honor or conscience was not due or payable, and which, in law and good conscience ought not to be retained, it was and ought to be recovered back." And in that case there was as much reason for setting up successfully the maxim, ignorantia legis non excusat, as in the class of cases under discussion. Indeed, the maxim was set up by the unsuccessful side in that case. There the mistake of law was based entirely upon the parties' ignorance of the law. In City of Louisville v.Zanone, 1 Met. (Ky.)

151, the same principle was again affirmed, and applied in a case where money had been paid under a void ordinance-void by virtue of some intrinsic defect. And, again, in City of Covington v. Powell, 2 Met. (Ky.) 226, the position was again affirmed, and applied in a case where suit had been brought against a city to recover illegal taxes voluntarily paid; that is, not paid under protest. In Bank of Commonwealth v. Mayor of New York, 43 N. Y. 184, where an action was brought against a municipal corporation to recover back a tax unlawfully levied and collected, it was held that the corporation was bound to refund to the plaintiff such portion of the taxes as was received by it, notwithstanding that such corporation did not appoint or have control over the collectors of such taxes. There is nothing on the face of the proceedings to show that the tax was paid under protest or compulsion. Nor does it appear to have been considered by the court as a necessary element to a recovery that protest or compulsion should exist.

We submit that, upon a fair consideration of the question in the light of principle and the better authority, that there can be but one conclusion respecting the right of a person who has paid taxes, illegally imposed, to a city, town or county, whether voluntarily or otherwise to recover them back; and that conclusion is, that he has such a right.

the recovery of money paid by the relator to the defendant, Opel, as collector of the City of Jefferson, on an alleged illegal assessment of relator's property for taxes. Plaintiff obtained a judgment, from which defendant has appealed.

Neither the motion to strike out parts of the defendant's answer, the motion for a new trial, nor the motion in arrest of judgment is incorporated in the bill of exceptions, and it has been uniformly held, that, unless incorporated in the bill of exceptions, neither instructions nor motions can be noticed by this court, although they may be set out in the record.

"A clerk can not make anything a record which he pleases to write in the order book or sees fit to copy into a record." Nothing but the record proper is a part of the record until made so by being copied into the bill of exceptions. A mere reference to motions and instructions in the bill of exceptions by citing the pages on which they appear, on what the clerk pleases to certify as the record, will not suffice. They must be copied in full. U. S. v. Gamble & Bates, 10 Mo. 459; State v. Wall, 15 Mo. 208; Christy's Administrator v. Meyers, 21 Mo. 112; State v. Shehane, 25 Mo. 565; Sturdivant v. Watkins, 47 Mo. 177.

The bill of exceptions is prepared and signed before the record is made up, and the signature of the judge who tries the cause, to a bill of exceptions, which, instead of containing the motion passed upon by the court, has memoranda for the clerk, such as "here insert it," or see page-of the record," is necessarily a mere skeleton. Noth

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ing but a bill of exceptions can make motions a

part of the record, and unless incorporated bodily in the bill, they can not be noticed by this court. They are no part of the record proper, and should not appear there, and why they are inserted as a part of the record and omitted from the bill of exceptions, when it has been so often decided by this court that they will not be considered unless incorporated in the bill of exceptions, we are at a loss to understand.

Copying them in both places unnecessarily encumbers the transcript, and it is of no avail to the party excepting, that they are in the record proper where they do not belong, if omitted from the bill of exceptions where and where only they do properly belong.

Judgment affirmed. All concur except Norton, J., not sitting.

NOTE. The rule announced in the foregoing case seems to us to be the better and safer one, but it does not obtain to its fullest extent in all the states.

In Mayor v. Sheffield, 4 Wall. 189, it was said: “If a paper which is to constitute a part of a bill of exceptions is not incorporated into the body of the bill, it must be annexed to it, or so marked by letter, number or means of identification mentioned in the bill, as to leave no doubt when found in the record that it is the one referred to in the bill of exceptions."

In Busby v. Finn, 1 Ohio St. 409, it was said: "We do not mean to say that it is indispensable to copy into, or actually attach to, a bill of exceptions, every paper making part of it, though Hicks v. Person, 19 Ohio, 446, seems to require this. Such a description may be given of an exhibit as to leave no doubt of its identity when found among the papers; but, on the other

hand, the description may be so loose that of a number of papers each one will satisfy it just as well as any other."

The code of Iowa provides that "an exception when presented for signature need not include therein, spread out at length, any writing filed in court, but may incorporate the same by any unmistakable reference thereto." Rev. Stats. of 1860, §3109; Code of 1873, 469, §2834. In Lyons v. Thompson, 16 Iowa, 62, the bill of exceptions recited that the case "was submitted to the jury on the evidence hereto attached, and found on pages 15, 16, 17, 18 to 38 inclusive, which was all the evidence in the case." The court, without deciding whether testimony taken as that was, was a "writing filed in court," held, that it was not sufficiently identified. The court said: "And while we are not prepared to hold that a writing would not be considered and examined by us, which was not incorporated in the bill in the exact method directed in the section above quoted, we have no hesitation in saying that it is very much the better and safer practice, and that if there is a departure from it the writing, if attached or annexed, should be so clearly and unmistakably marked or identified as to leave no fair or reasonable room for doubt as to its genuineness, or as to its being the very paper to which reference is made, or to which the ruling relates. If, on the other hand, this testimony is not a 'writing filed in court,' then the necessity for care and certainty in the identification is even more manifest. For, in the one case, the act, or mark of filing, tends to assist in the identification, and decreases the chance for mistake, while we have no such aid in the other." To the same effect see Van Orman v. Spafford, Clarke & Co., 16 Iowa, 186; Moffit v. Rogers, 15 Iowa, 454: Reed v. Hubbard, 1 G. Greene, 153. And see State v. P. I. R. Co., 44 Ind. 350; C. & I. C. R. R. Co. v. Griffin, 45 Ind. 369; Stewart v. Rankin, 39 Ind. 161, construing a statute similar to the Iowa code.

It was intimated in Sexton v. Willard, 27 Wis. 465, that if the depositions and documents referred to in the bill had been "referred to as marked exhibits, or as being attached to the bill, or even as being on file in the cause, giving dates or some other identifying description, this might be sufficient." Orton v. Noonan, 19 Wis. 377; Judd v. Noggle, 16 Wis. 334; Woolfolk v. Wright, 28 Ark. 1; Tuskaloosa Co. v. Logan, 50 Ala. 503.

See

James Carr and R. P. Gills, for defendant in error; Joseph L. Hart, for plaintiff in error. NORTON, J., delivered the opinion of the court: This suit was brought in the Marion County Circuit Court in July, 1868, for an admeasurement of dower in lot 4, in block 37, in the city of Palmyra. Plaintiff avers in her petition that she is the widow of Morgan Hart, who, in his life-time, bought lots 4, 5 and 6 in block 37 in said city, from Reed & Perrin, the owners, on credit, and gave his five several notes for $500 each for the purchasemoney, the vendors executing to him a bond for conveyance of the title on payment of the purchase-money; that under his purchase he went into possession and afterwards paid three of said notes, and died in possession of the lots.

The answer admits the contract of purchase, the payment of $1,500 of the purchase-money, which was $2,500, and that Hart died in possession. It avers that Hart's personal estate being insufficient to pay his debts, his administrator, under the statute, procured an order of the county court for the sale of the lot in question, and under said order sold the same on the 1st day of January, 1855, at public sale, to one Richard C. Martin; that plaintiff was present at said sale and authorized the auctioneer to proclaim to the bidders that she did not claim any dower in the property; that she would not claim any dower, and that it was clear of dower; that plaintiff was present and heard such proclamation, and remained silent; that Martin, the purchaser, heard said proclamation, and bought the lot at the price of $1,830, which was its full value, and that he would not have paid that price if said statements had not been made by the auctioneer; that plaintiff delivered possession of the lot to Martin immediately after the sale; knew that it was bought by him on the faith of the representations that plaintiff would claim no dower; that plaintiff has ever since lived in the neighborhood of the lot, and did not, from that time to the commencement of the suit, assert any claim to dower, although valuable improvements were made thereon; that Martin afterwards, in 1856, sold his interest in the property to one Williams, paid Hart's two notes to Reed & Perrin, and received from them a conveyance to said lot; that Williams was present at the administrator's sale, and heard the statements made by the auctioneer; that he afterwards, in 1865, sold and conveyed the lot to defendant, Giles, who had no notice of any claim of dower on the part of plaintiff.

The replication of plaintiff denies the matter set up in the answer by way of estoppel, and avers that the statements made by the auctioneer were made on his own responsibility, and on the idea that she had no dower, because her husband had not paid all the purchase-money.

The issues presented by the pleadings having been submitted to a jury and being found for defendant, the court rendered judgment accordingly, and plaintiff brings the cause here by writ of error.

The evidence offered on the trial clearly establishes that the administrator of Hart, under an order of the county court for the sale of his real estate to pay debts, offered the lot for sale in the