Opinion
34953.
DECIDED FEBRUARY 4, 1954.
Action for money paid. Before Judge Alexander. Savannah Municipal Court. September 4, 1953.
Sullivan Maner, for plaintiff in error.
Julius S. Fine, contra.
1. Payment of a fine illegally imposed, made under urgent and immediate necessity to prevent seizure and imprisonment of the person, constitutes such duress as will allow recovery back by the person so illegally threatened.
2. A sentence passed on a trial in a municipal court, for the violation of a provision of a State statute setting forth the charter of the municipality, is void and subject to collateral attack.
3. Where the sentence passed is absolutely void, it does not affect the result of this case that there was an attempt to appeal directly the original conviction, which failed because of technical imperfections in the petition for certiorari in such appeal.
DECIDED FEBRUARY 4, 1954.
C. E. Rose, Jr., sued the Mayor Aldermen of the Town of Thunderbolt in the Municipal Court of Savannah, to recover a fine and costs alleged to have been paid by him under duress and in response to a void conviction.
The petition alleges in substance: that the defendant was convicted under sec. 37, title 1, part 3 of the act of the General Assembly of 1921, p. 1141; that a judgment of conviction and a fine of $100 and costs of $1 were imposed on him; that he applied to the superior court for certiorari, which was denied; that he appealed this judgment to this court, where the denial of the certiorari was affirmed (see Rose v. Mayor c. of Thunderbolt, 86 Ga. App. 867, 72 S.E.2d 823); that a rehearing by this court was denied; that the Supreme Court denied certiorari; that thereafter an agent of the defendant required him to pay the fine or in lieu thereof threatened to take him into custody to impose the imprisonment prescribed by the sentence on failure to pay the fine; that the fine was paid under protest and duress; and that, since he was tried under a statute and not an ordinance, the judgment of conviction and the imposition of the fine for the alternative prison sentence was void.
The defendant demurred to the petition as follows: that the plaintiff has failed to set out a cause of action; that said petition is defective because it shows on its face that the moneys paid to the Mayor and Aldermen were paid on a valid judgment of the Mayor's Court of the Town of Thunderbolt, which judgment was affirmed by the Court of Appeals of Georgia and by the Supreme Court of Georgia. The trial judge wrote an opinion in his judgment sustaining the demurrers, in which he pointed out that section 37 of the Thunderbolt charter was sufficient to cover and make penal the act committed by the defendant, which was blowing an automobile horn to such an extent as to make unnecessary noise in the town; and that another section of the charter act provided for a mayor's court for the trial of all offenses against the ordinances and laws of the Town of Thunderbolt, which act also empowered the mayor's court upon conviction to sentence any offender to work on the streets or other public works of said town or to imprison for labor on the chaingang of Chatham County for a period not exceeding 30 days and to impose a fine not to exceed $100.
The judgment sustaining the demurrers and dismissing the petition is assigned as error.
Money paid out by way of taxes or fines is voluntary, and may not be recovered back unless payment is made involuntarily and under duress, under an urgent and immediate necessity therefor, or to release or prevent immediate seizure of person or property. Code § 20-1007. Where, however, one is convicted in a recorder's court, which has power to convict only under valid city ordinances, and no valid ordinance authorizes such conviction, payment of a fine to prevent immediate seizure of the person is not a voluntary payment, and may be recovered back. Clay v. Drake, 66 Ga. App. 544 ( 18 S.E.2d 516).
This case turns upon whether the petition sufficiently alleges the payment of the fine to prevent immediate imprisonment under a sentence in the Mayor's Court of Thunderbolt for a conviction not under any valid ordinance of such town. The petition alleges affirmatively that the defendant was convicted of a violation of a State law, i.e., the legislative act establishing the town charter, and that the threatened imprisonment was illegal, the judgment void, and the conviction a nullity, for the reason that the statute under which the defendant was convicted was not an ordinance or criminal law, and that it provided no authority upon anyone to impose such conviction or sentence. We consider these allegations sufficient to set forth affirmatively that the defendant was convicted, as alleged directly, under the charter statute, and not under some unpleaded ordinance other than the statute in question. It is therefore necessary only to decide whether such a conviction would be absolutely void, for, if not, it cannot be the subject of a collateral attack such as this; but, if so, the payment under such void judgment for the sole purpose of preventing imprisonment of the person was made under duress, and might therefore be recovered.
As stated in Hall v. City of Macon, 147 Ga. 704, 709 ( 95 S.E. 248): "A valid municipal ordinance is the foundation of its jurisdiction. The charter confers the power to acquire jurisdiction . . . but jurisdiction, in the proper sense of the term, is not vested in the mayor and council by the provisions of the charter itself. The charter is not and was not intended to be self-operating." In Stembridge v. Wright, 32 Ga. App. 587 (2) ( 124 S.E. 115), it is held, "In no event has a municipal magistrate jurisdiction to assess a fine against a person for the violation of a State statute." See also Daniel v. City of Claxton, 35 Ga. App. 107 (6) ( 132 S.E. 411). It follows, therefore, that the mayor, sitting in court in a judicial capacity, had no jurisdiction to assess a fine against the plaintiff here for a violation of the charter of the town, which existed as a State statute and which was not self-operating, since the mayor had no jurisdiction of the subject matter involved. Under these circumstances, a collateral attack on the judgment is permissible. Code § 110-701. Whether or not there was a valid ordinance of the Town of Thunderbolt covering the misconduct of the defendant is immaterial, since the allegations of the petition show affirmatively that the defendant was tried for the violation of the charter and accordingly was not tried for the violation of any ordinance. Also, the judgment of the trial judge sustaining the demurrer discloses that the petition was considered by him on the basis of charging that the defendant was tried for the violation of the State statute or charter, and not for the violation of any ordinance of the town. This case differs from White v. Tifton, 1 Ga. App. 569 ( 57 S.E. 1038), in that there it was contended merely that the judgment was erroneous, not that it was absolutely void for lack of jurisdiction.
There is nothing in the decision in Rose v. Mayor c. of Thunderbolt, 86 Ga. App. 867 ( 72 S.E.2d 823), which would require a different decision, since the judgment of affirmance of this court was based merely upon the fact that the petition for certiorari appealing the original conviction was properly dismissed where it was too defective for consideration.
If in fact the plaintiff in error actually was tried for the violation of an ordinance enacted pursuant to the charter provisions, this defense, of course, may be set forth in the answer; but, as pointed out, if the conviction was based on the charter itself, in accordance with the allegations of this petition, the petition sets forth a cause of action, and the trial court erred in sustaining the demurrer thereto and dismissing the petition.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.