
    Samuel B. Newman, Plaintiff in Error, v. Robert H. Elam, Defendant in Error.
    1. Auditor of public accounts : instructions of : their authority : tax collector. — The auditor of public accounts is authorized by the Revenue Act of 1846, § 65, to transmit to assessors, and collectors of taxes, such instructions as he may consider useful in enforcing the revenue laws; and these instructions, though founded on an erroneous construction of the statutes, when given are mandatory on those officers, and a justification for acts done in obedience thereto ; hence, where a tax collector' acting under the instructions of the auditor, collected from a vendor of slaves taxes not imposed by law, and paid the same into the state treasury, without protest on the part of such vendor, he will not be liable to refund the money so collected.
    2. Same.- — Where an officer having authority to do so, issues instructions to a ministerial officer, the latter has no right to inquire whether the instructions are founded upon an erroneous construction of the statutes: it is his duty to conform to them. See 3 Phil. Ev. C. & H. notes, 1005-100T.
    In error from the Circuit Court of Ada^s county. Hon. Stan-hope Posey, judge.
    The proceedings in the court below are sufficiently stated in the opinion of the court.
    
      Josiah Winchester, for plaintiff in error.
    We hold that this action cannot be maintained, because:—
    
      1. No action lies to recover back money paid voluntarily and without compulsion, where the party receiving the money is not guilty of fraud, and where both parties are equally cognizant, or are possessed of the means of becoming cognizant of the facts upon which their rights depend. Mayor, $c. v. Judah, 5 Leigh, 318; Robinson v. Oity Council, ¿•c., 2 Rich. 317; Grower v. Pop-Icins, 2 Stark. R. 85; Bilbie v. Lumley, 2 East, R. 469.
    And the tax collector being a mere agent at best, would not be liable in an action of this nature, where his principal would not be. It will be observed, that the answer of Newman negatives the idea that the taxes were paid by compulsion. He alleges that the taxes were paid without protest or notice not to pay them to the state. No objection was made to the legality of the tax, till after the decision of the case of James v. JElder, had opened the eyes of the defendants in error.
    2. The collector being merely an agent, no action to recover back money will lie against him, in those cases in which an agent of any other description or character would not be liable. And the money having been received by the collector in good faith, and having been paid over by him to the state, in the regular course oí his duty, without protest or notice from the defendants in error, he is not liable. Qox v. Prentice, 3 M. & S. 348; Buller v. Harrison, 2 Cowp. 568; Sadler v. JEvans, 4 Burr. 1986.
    3. The collector being a revenue officer, cannot be called on to refund money which he has bond fide, received in his official capacity, even if an ordinary agent might under similar circumstances be required to refund. Whitebread v. BrooJcsbanJc, Cowp. 69; Greenway v. Hard, 4 T. R. 553; Linden v. Hooper, Cowp. 414; Stablefield v. Tewd, Bull. N. P. 133 ; Potter v. Bemis, 1 Johns. R. 515.
    4. Admitting that a party paying money to an agent under misapprehension either of fact or law, may, after becoming aware of the mistake, treat the agent as a stakeholder, and suspend the money in his hands by a notice not to pay it over; yet the rule does not apply to a ministerial officer of the government, who is bound to pay over the money, in the regular and ordinary course of his duty, into the treasury of the state;, under a penalty for neglect. Upon receipt of it by Mm, be acts as regards tbe payer, functus officio. If be refuses or neglects to pay it into tbe treasury, tbe state alone can require it of bim, and tbe payer must look to tbe state for reimbursement. The tax collector is not an agent, within tbe usual understanding of tbe term. He is an officer bound to receive what tbe law, and the instructions of his superior require bim to receive; and bound to pay over when, in what manner, and to whom tbe law and those instructions may direct. Tbe peculiar character of tbe collector as distinct and different from that of an ordinary agent, will appear from an examination of tbe duties required of bim under tbe acts of tbe legislature. Tbe auditor of public acts, is required to transmit forms of assessment and lists with instructions; and it is made tbe duty of assessors and collectors, to conform strictly to such forms and instructions. Sect. 15 of tbe Revenue Act of 1846, page 72: and by sect. 47, of same act, collectors are required to pay over tbe taxes on tbe 1st of May, of each year, under a penalty for neglect; and by sect. 55, by neglect or failure for fifteen days to pay tbe amount of taxes into tbe treasury, tbe governor may remove him from office. Tbe collector has not even a common law lien, either gene7 ral or special, upon tbe funds in bis bands, (freenway v. Hard, 4 T. R. 553; Whitébread v. Broolcsbanlc, Cowp. 69; Sadler v. (Evans, 4 Burr. 1984.
    5. This is an equitable action, and any equitable defence is sufficient to defeat it. Tbe defendant acted bond fide, in tbe discharge of his duty under instructions from bis superior officer, which, by law be was bound to obey. • Tbe plaintiff has acted negligently, in not making tbe proper inquiry as to bis liability to pay taxes, and in not giving tbe defendant notice in season, not to pay tbe money over.
    
      Greorge L. Potter, for defendant in' error.
    Elam, sued Newman for money wrongfully collected by bim, as tax collector, for taxes due on slaves sold for merchandise. Tbe complaint charged that plaintiff upon tbe official claim and demand of Newman as tax collector, “and under duress of alleged authority and process,” “ compulsorily,” paid tbe money.
    
      Defendant demurred, and bis demurrer being overruled, answered, admitting that be collected tbe money as alleged in the complaint; but alleged be paid over tbe money to tbe state, before suit, and ■without any protest by plaintiff, or notice not to pay over. Pursuant to tbe Pleadings Act of 1850, plaintiff demurred to tbe answer, wbicb demurrer was sustained; and defendant declining further answer, judgment was rendered with inquiry, &c.
    Tbe claim for tax dues was unfounded; be bad no authority of law to collect as for taxes due on slaves sold as merchandise. James v. PRder, 1 Cusbm. 184.
    His plea that be bad paid over, will not excuse him. He admits tbe extortion — be illegally demanded tbe money, and bis pacing over was at bis own risk. Prye v. Lockwood, 4 Cow. 456, 457, and eases cited; Ripley v. Gfelston, 9 Johns. 201. Tbe answer expressly admits tbe duress, and tbe law would imply it in such a case: such payments are not considered voluntary. Boston and Sandw. Gflass Oo. v. Boston, 4 Met. 187 et seq.; Preston v. Boston, 12 Pick. 14 et seq.
    
    These cases, and those in 4 Cow. 456, 457, and 9 Johns. 201, show that payments made under such circumstances, are illegal receipts by tbe officer, made on compulsion, and plaintiff is neither bound to show protest or notice, nor is tbe fact that defendant has paid over, any excuse.
    Tbe answer admits all not denied in the complaint; admits tbe state bad no claim, and defendant no right to demand tbe money.
    Newman cannot set up tbe case of agency ; the state bad no claim: Newman no principal.
   HaNdy, J.,

delivered tbe opinion of tbe court.

This was an action at law in tbe Circuit Court of Adams county, to recover a sum of money paid by tbe defendant in error, to tbe plaintiff in error, as sheriff and tax collector of that county, wbicb sum of money, it is alleged, tbe plaintiff in error, as sheriff and collector, claiming to act under direction from tbe auditor of public accounts of this state, in April, 1850, collected from tbe defendant in error as a vendor of slaves, in Adams county, and for sales of slaves made by him in that county, for tbe fiscal year commencing with. March, 1849, and ending 1st March, 1850, in the same way, and upon the same footing, as if the slaves so sold were merchandise, under the revenue laws of this state. The right of recovery is claimed on the ground of the payment being made under duress of supposed authority and by compulsion.

The answer states, that the money was paid to the plaintiff in error, as tax collector, acting under the direction of the auditor of the state, without protest or notice not to pay it over to the state, and that the same had been paid over by the plaintiff in error, before the commencement of the suit and without notice to the contrary, to the State of Mississippi.

To this the plaintiff below demurred, and the demurrer was sustained, and the defendant below declining to answer further, judgment was rendered for the plaintiff; to which this writ of error is prosecuted.

Several grounds of objection to the plaintiff’s right of recovery have been taken here. But we think that the merits of the case depend upon the question, whether the record shows such warrant to the tax collector as would justify him in making the collection.

The authority shown in the answer is, that in collecting the money, he acted under direction of the auditor of the state, and we have to inquire whether that was a sufficient warrant.

The act of 1846, § 66, (Hutch. Code, 198,) makes it the duty of the tax collector to collect from transient vendors of goods, &c., the taxes that may become due from the sale of goods by such persons. *

The 16th sect, of the Revenue Act of March 9th, 1850, provides, “ that all vendors of slaves as merchandise, who shall carry the same from point to point within this state, offering the same for sale as such, shall be assessed with the sales thereof as merchandise sold by transient vendors, and such taxes shall be collected according .to the laws now in force relative thereto.”

The 65th sect, of the Revenue Act of 1846, (Hutch. Code, 198,) makes it the duty of the auditor to transmit to the assessors and collectors, such instructions as he may consider useful in enforcing the execution of the provisions of that act.”

By the same act, the tax collector is required to pay into the state treasury, tbe moneys collected by Mm for tbe use of the state, on or before tbe first day of May, in each year, and upon bis failure to pay over tbe amount of sucb assessment return,” for bis county, be is required to pay thirty per centum per annum damages, from tbe time tbe same should have been paid, and is also liable to removal from office.

It must be taken under tbe pleadings in this case, that tbe auditor issued bis instructions to the tax collector, directing Mm to assess and collect taxes upon slaves, in tbe condition of those owned and held by tbe defendant in error, in virtue of the provisions and authority of these statutes, and the question is, had he the power and authority to do so ?

The provision of the statute is very general: — that be “shall transmit such instruction as he may consider useful in enforcing the execution” of the revenue laws. The power conferred is not restricted to any particular cases or questions, and it necessarily clothes tbe auditor with a large discretion, to be exercised in bis best judgment, in regulating the performance of tbe duty of collecting and accounting for the public revenue. It authorizes him to prescribe to the tax collectors rules of proceeding in the discharge of their duties, not otherwise prescribed by law, and in cases of doubtful construction of tbe laws, to instruct them as to the rule of action to be observed by them; for this may become very essential in enforcing the execution of those laws. These instructions, when given, must necessarily be mandatory and if violated, would subject tbe officer to the penalties of official delinquency. If they be injudicious or founded in an erroneous view of tbe statute, they are nevertheless imperative and binding upon tbe tax collector, because they proceed from tbe officer clothed by law with tbe power to issue them ; and for the same reason, they would be a justification to him in rendering obedience to them. If it were necessary to consider the propriety of tbe exercise of the power conferred upon the auditor, in giving instructions as to the liability to taxes of persons holding slaves in tbe condition of those held by tbe defendant in error, tbe litigation upon the subject which the records of this court show has taken place, is sufficient to show that it was a doubtful question, which well justified the auditor in exercising the power given him by law, by instructing the tax collectors as to the rule by which they would be governed. We think that such a power was clearly embraced by the provision of the statute; and though the construction put upon the statute was erroneous, yet he had the power to do the act, and upon established doctrine, it was a justification to the tax collector. For if the authority proceeded from an officer having the power to issue it, and was regular and valid upon its face, the tax collector, as a ministerial officer, had no right to examine whether it was issued under an erroneous construction of the statute, but it-was his duty to conform to it. 3 Phill. Evid. Oowen & Hill’s notes, 1005, 1007, and authorities there cited. And he is not liable to an action to recover the money so collected and paid over to the state.

The judgment is reversed, the demurrer overruled, and the cause remanded. ' t  