Bagley v. Shoppach

43 Ark. 375

• Court: Supreme Court of Arkansas
• Decided: November 15, 1884
• Status: Published

Opinion

Cockrill, C. J.

Bagley sued Shoppaeh as sheriff and ex oficio collector of taxes in the Saline circuit court for twenty dollars. The complaint is not framed upon the most approved precedent for such cases, but it is apparent that plaintiff has declared against an officer for receiving more fees for his services than the law allows him, together with the penalty awarded, under Section 1740, Gantt’s Dig.

It is alleged that Bagley became the purchaser of sixty-one tracts of land at a sale made by defendant for the nonpayment of taxes due for the year 1883, and received from him a certificate of purchase embracing all the tracts, for which defendant collected and received of Bagley the sum of fifteen dollars and twenty-five cents, as his fee therefor, when, it is alleged, the statute gives him but twenty-five cents. He sues for the overcharge and a penalty of five dollars.

A demurrer to the complaint was sustained and the suit dismissed.

tJ;e *ate.°ertlü The Revenue Act of 1883 contemplates the execution of a certificate of purchase by the collector whenever there is a sale of a tract of land under its provisions, and allows the collector twenty-five cents for each certificate. It nowhere requires him to include a large number of tracts in one certificate, but if he elects to do so he can charge for but one certificate. An officer, is entitled only to such fees as the law expressly provides for his services.

fe ti o n-For exact-excessive fees. It is urged that the circuit court could not entertain . p i , , mal jurisdiction of the suit because the amount involved less than $100. This would be true if the suit were based on contract, or if it were for an injury to personal property. Appellant has not declared upon an implied promise of the appellee to repay what he had no right to receive, but he sues for the official tort and goes for the forfeiture and penalty which are the damages awarded by the statute for the tort. Prior v. Craig, 5 Sergt. & R., 43.

When forms of action were observed it was common to declare in debt for a statutory penalty, but this was because the sum demanded was certain, and the action was in such cases merely in form ex contractu. Chaffee v. U. S., 13 Wall, 516; Stockwell v. U. S., 13 Ib., 531.

The exaction of excessive fees for legal services is a species of fraud, and the same remedies are applicable as in other cases of fraud. Cooley on Torts, p. 607.

The court erred in sustaining the demurrer, and judgment is reversed with directions to overrule the same.