
    Thomas Smith vs. T. L. Hutchinson.
    The Mayor of the City of Charleston holding a Police Court may lawfully impose a fine upon one who had violated a city ordinance, as the alternative of his prosecution; and if the party choose to pay it he cannot afterwards recover it back.
    This was an action to recover twenty dollars from tbe defendant, Mayor of the City of Charleston. The Magistrate, Thomas 0. Elliott, before whom the case was tried, made the following report:
    “In this case, a nonsuit was moved for and granted. According to a well established practice, required and prescribed by the city ordinances, the Mayor attends every morning at the Guard House, to hear and determine the cases of persons who have been arrested and confined in the Guard House for offences during the night. In this manner the plaintiff was brought before the Mayor. After the report of the case, the Mayor said that the plaintiff should be punished; that if justice was done to the guardman, he should be prosecuted ; that he fined him twenty dollars.' Upon which, the witness, John Divine, asked to be allowed to pay the fine — asked the Mayor to let him pay the fine he had imposed on plaintiff — he said yes, he may pay it, and he must pay it over to the Captain of the Guard. He did pay it over to the Captain; but said, he hoped when the Mayor imposed another fine of twenty dollars, he would have a better cause.
    “ In cases of this description, it evidently belongs to the office to consider and determine in what manner such cases shall be dealt with and disposed of; and, in performing this duty, he must necessarily exercise a very large discretion. He (among other like matters,) is to decide whether the parties brought before him shall be compelled to pay the fines and penalties imposed by law, or not — or whether they shall be excused from the whole, or to abate the amounts fixed by law. He, in this case, decided that the plaintiff should pay twenty dollars.
    “ There is no evidence to show that he was to be imprisoned if he did not immediately pay it; on the contrary, it is plain that he was to be prosecuted for the whole, if he did not pay the amount specified immediately. The alternative was not proposed in any form, either pay twenty dollars, or go to jail, or be confined in the Guard House.
    “The city ordinance impose a fine of twenty-five dollars on those guilty of riotous, noisy and disorderly conduct in the streets at night. This authorized the fine imposed, or this abated amount which he was to pay at once and be discharged, or be sued for the whole amout.
    “ I think the act complained of was within the scope of his official duty and discretion. Besides, the Mayor was not the receiver, nor had he any interest in the fine.
    “ I think the plaintiff not entitled to bring suit, either on duress or for recovery of alleged unlawful fees. Nor is the Mayor, for the acts thus done, in exercise of his official duty in this case, liable. How, under other circumstances and other forms of action, he may be liable, is not now to be con-^ sidered.”
    ■ The plaintiff appealed on the grounds:
    1. That his Honor erred in granting a nonsuit, when, by the Acts of the Legislature, and the Ordinances of the City of Charleston, the Mayor is prohibited from imposing a fine, and when by the evidence it was shown that the fine was imposed colore officii.
    
    
      2. That his Honor should have decreed, that under the peculiar exigencies of the case, the plaintiff under the actual duress of imprisonment was constrained to pay the fine, and his payment thereof did not amount to such a willingness as to extinguish his right to recover the amount so paid.
    3. That by the Acts of the Legislature, the Ordinances of the City of Charleston, the general principles of law, the defendant, as Mayor, had no right to fine or receive a fine through a subordinate officer, even if the plaintiff were willing to pay it: and so fining and receiving, he was bound under the circumstances to restore.
    4. That his Honor erred in deciding that the defendant, as Mayor, had a large discretion in such cases, when, by lazv, his powers and duties are explicitly laid down; and
    5. That his Honor should have decreed, that if the plaintiff did pay the money to defendant, or the party authorized by him to receive it, under the erroneous belief that the defendant had the power of punishing him, it was such a mistake of the law, as would entitle him to recover the amount so paid.
    The appeal was heard in the City Court, October Term, 1854, before his Honor, the Recorder, who reported his decision, as follows:
    
      “ The report of the Magistrate in this case, of the grounds of his decision in nonsuiting the plaintiff, with a statement of the-evidence in the case, is hereto annexed. Upon the facts, and the law applicable to them, I cannot concur in the judgment below. I, therefore, set aside the nonsuit, and order a new trial.
    
    “ The appeal, from the judgment of nonsuit below, it will appear, was.made to this Court upon the grounds taken by the plaintiff’s attorney, and upon which the case was brought up, (a copy of which grounds are also annexed). As the grounds of appéal furnish, with the report of the Magistrate, the facts and tbe law upon which the plaintiff relies, it is not necessary, I should, perhaps, do more than transmit to the Court of Appeals, these materials for their judgment. It may not be, however, improper for me to say, that I consider the plaintiff’s first ground as well taken and clearly sustainable.
    “ It is conceded that under the Acts of the Legislature and ' the City Ordinances in conformity therewith, the City Guard are authorized to arrest parties for such offences as the plaintiff was in this case arrested for. That the Mayor, the chief executive officer of the city, and peculiarly the head of the City ' Guard, has, in respect to these cases, the authority to hear them, as it were, in the way of inquiry, whenever they occur, (that is to say, in the morning,) and to dismiss, to direct to be prosecuted, and let to bail, all such offenders, according to his judgment, is not to be denied. But the question in this case seems to my mind, to rest upon the supposed assumption by the Mayor, colore officii, absolutely to fine the party arrested and then in custody; or, in other words, authoritatively to pronounce a definitive sentence. This power clearly is not given to him under the Acts of Assembly. The penalty for this offence, as I understand it, is twenty-five dollars, recoverable in the City Court, or any other Court of competent jurisdiction.
    “ It is possible that the Mayor upon announcing to the party that the legal penalty imposed by law for this offence was twenty-five dollars; (if the party voluntarily offered to pay it,) would be authorized to receive it. But it strikes me that even in such a case, although every one is bound to know the law, it should appear that the party was apprised or knew that the fine could not be imposed by the Mayor, definitively and absolutely, ‘ ex proprio vigore, authoritatis ejus,’ and that in case of no such voluntary offer on his part, the matter must be turned over to the competent authority for prosecution; and, as incident to this, the right of the party to discharge himself from custody, on giving bail."
    
    
      From the decision of the Recorder the defends,nt appealed, on the grounds:
    1 Because the payment of the twenty dollars was voluntary, and cannot be recovered back.
    2. Because it was lawful for the Mayor to receive the amount of the fine fixed by ordinance, for riotous or disorderly conduct, without prosecution; and it is also lawful for him to receive a less amount, as the alternative of a prosecution, if the party choose to pay it.
    3. Because the plaintiff did not pay the twenty dollars, therefore cannot recover it back.
    4. Because the Mayor did not receive the money, and is, therefore, not liable in an action for “money lent and advanced, and had and received, for the use of said Smith.”
    5. Because the nonsuit was properly granted, and should not have been set aside.
    
      Porter, City Attorney, for appellant.
    
      Anderson, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case it may be useful to ascertain, whether the defendant, the Mayor of the City, was guilty of imposing, without what he supposed to be legal authority, a fine.

The sixth section of the Ordinance of 22d October, 1821, (City Ordinances, 54,) provides “ thht after tattoo, or the nine or ten o’clock bell, as the case may be, all clamorous singing, whooping, or other obstreperous, wanton and unnecessary noises, calculated to disturb the peace and quiet /of the city, are hereby prohibited under a penalty (in case the offender or offenders be a white person or persons) of twenty-five dollars, recoverable by prosecution in the City Court.” The Mayor, by the first section of the Ordinance of the 25th of August, 1846, (City Ordinances, 165,) is charged to be “ vigilant and active at all times in causing the ordinances and laws for the government of the city, to be duly executed and put in force.” By the third section, he is authorized daily to hold a Police Court, for the “ examination of all slaves, or other persons, committed to the Guard House.”

The plaintiff was one of these who was taken up by the guard, and committed to the Guard House, for the violation of the sixth section of the Ordinance of 22d October, 1821. When the facts of the case were reported to the Mayor, he said the plaintiff should be punished, if justice was done to the guardman, he (the plaintiff) should be prosecuted, that he fined him twenty dollars; upon which Divine paid the money for the plaintiff. I do not understand by all this anything more than what the Mayor might rightfully do, so far as the plaintiff was concerned. He simply rebuked him for his conduct, told him he should be punished, and that for his conduct to the guard-man he ought to be prosecuted, but finally wound up by telling him, to escape these consequences you must pay a fine of twenty dollars. According to the ordinance, he should have directed him to be sued in the City Court for the fine'of twenty-five dollars. The plaintiff certainly has no cause to complain of the Mayor’s act, whereby he escaped with a less sum. It is worthy of remark, too, that the Mayor, sitting in a Police Court, has the right to judge primarily that the fine has been incurred, and this is all which I understand the Mayor as doing. The fine was incurred as far as twenty-five dollars, and the plaintiff’s friend paid a less sum, which the Mayor permitted. Conceding this to have been irregular, and the money to have been paid without warrant of law, can the plaintiff recover it back ? I am clear he cannot. For beyond all doubt, it was a voluntary payment. He, or his friend Divine, had nothing to do, but simply to have contested the point, and said to the Mayor, I will abide the decision of the City Court, and if you choose to prosecute for violence to the guardman, I am ready to answer; and then if the -Mayor had improperly confined the plaintiff, or by any show of force had coerced payment, it might have been said that this was money obtained by duress, or proceedings having the color of law. But the plaintiff, instead of thus acting, was permitted to pay, and did pay less than he was legally bound to pay. The case of Robinson vs. The City Council of Charleston, 2 Rich. 317, shows that a payment of that which could not have been legally required, if done in ignorance of the law, was a voluntary payment, and could not be recovered' back. Certainly that case goes much further than this.

The motion to reverse the Recorder’s decision, and to affirm the Magistrate’s judgment, is granted.

Wardlaw, Withers-, Whitker, Glover and MüNEO, JJ., concurred.

Motion granted.  