Town of Tupelo v. Beard

SimRall, C. J.,

delivered the opinion of the court.

This suit was brought by Beard & Holditch, partners, to recover from the town of Tupelo $290, compulsorily exacted and paid to the corporate authorities, in 1876, for a license to retail vinous and spirituous liquors for one year. The question raised by the demurrer to the declaration, and on the trial by the jury, was whether the plaintiffs ought to recover.

Considering that as the substantial question in controversy, we shall dispose of it without reference particularly to the pleadings and the instructions.

The town rested its defence on two grounds, namely, that it had a right to receive and retain the money, under its charter; and, secondly, that the payment was voluntarily made, and therefore the money cannot be reclaimed.

First, as to the right. The seventh section of the charter (Acts 1870, p. 397) gave to the mayor and councilmen power to control and regulate all drinking-saloons, eating-houses, restaurants, and places of. amusement or refreshment of . any kind, and the same to license, or refuse to license, as they may deem expedient; to fix the rate (tax) on merchants, * * * occupations, and callings ; but the parties so licensed shall be iable to all State, and to county licenses and taxes.

*535 The eighth, section allowed a tax of $100 to be imposed on every retail liquor-dealer. The eleventh section appropriated “ all sums of money arising from licenses and tax, except State licenses and tax, . * * * derived from drinking-saloons, to be used for the public school of the town.” “Provided this section shall be subject to the general school-law of the State, when the Legislature * * * shall deem it necessary to so provide.” The act of incorporation was approved the 20th of July, 1870.

We see in the charter a power to license, subject, however, to the State and county tax; also a power to tax the business or occupation of the retailer to the extent of $100, for the use of the public school of the town, but subject to such general school-law as the State may see proper to adopt. The corporate authorities would have exhausted the authority to tax when they had collected $100 from the dealer, if the charter were unaffected by any subsequent legislation.

But the final clause of sect. 2458 of the Code declares “ that no city, town, or county shall have power to levy an additional tax, or percentage, on the license herein'provided for, for city, county, or town purposes.” It is plain that this provision of the general law repeals the franchise conferred by the charter to tax the license or the retailer. Nor is this case open to the contention made in Board of Education v. Aberdeen (ante, p. 518), that the charter donated the money to the corporation-; for this act of incorporation studiously refrains from interfering with the State tax for license, and submits the privilege to collect $100 from the retailer to such regulation as the State might choose to make..

The conclusion is that the town, under its charter, could legally collect nothing for the license on its own account; nor could it tax the privilege or the retailer.

Secondly, was the $290 voluntarily paid? and if so, does that preclude a reclamation of the money ?

The proof is clear that Beard & Holditch presented a petition for license, made the requisite bond, and satisfied the *536 corporate authorities that they had paid to the sheriff the $ 200 ou account of the State, and asked that the amount which had theretofore been paid to the town should be reduced; that a reduction, at their instance, was made ; that the amount fixed, to wit, $290, was paid to the town treasurer before the license was granted.

There is no doubt that the mayor and council and Beard & Holditch placed a wrong construction on the powers and franchises of the town.

The petitioners, Beard & Holditch, acted on the assumption that the town had a legal right to collect the money .for corporate purposes, and the authorities labored uuder the same error as to its franchises.

The plaintiffs were the actors throughout, not at all doubting the authority and right of the town to the money. They seemed only concerned to reduce the amount. The next day after the mayor and council had acted on the application, Beard went to the place of business of the town treasurer, and handed him the money. He did not wait for a call on himself or partner.

The payment, then, was with full knowledge of the facts, but in mistake or ignorance of the law.

A voluntary payment of money, made under a mistake, or in ignorance of the law, if no fraud or imposition has been used to procure it, but the facts are known, cannot be reclaimed.

The Town Council of Cahaba v. Burnett, 34 Ala. 400 , is, in its facts, strikingly like this case. Burnett sought to recover back $1,000 which he paid the town to retail liquor. The ordinance under which the application was made was void, and so declared afterwards. There was also an ordinance imposing fines for retailing without license. The court states the circumstances of the payment: 1 ‘Without being thereto directly called or requested, the plaintiff went to the proper officer, paid him the sum required * * * to procure the license and adds, “that the payment was purely-voluntary,” unless the prospect of proceedings to punish for selling without *537 license would make the payment involuntary'. If the party was influenced by such apprehension, it would not be such compulsion as comes within the rule on that subject. Knibbs v. Hall, 1 Esp. 279.

Payment of a demand unjustly made, and attempted to be coerced by suit, is not a compulsory payment which may be recalled, if the party was cognizant of the facts, and if there is no fraud. Benson v. Monroe, 7 Cush. 125 .

An unsuccessful effort was made in Mays v. Cincinnati, 1 Ohio St. 268 , to recover back money in circumstances much like those in this case. The principle is supported in the cases of Clark v. Dutcher, 9 Conn. 674 , and Robinson v. Charleston, 2 Rich. 317 .

Our conclusion on the second proposition is, that both parties —the city authorities and the plaintiff — acted under a misconception of the legal rights of the corporation, but both were equally aware of the facts, and that no fraud or imposition was practised on the plaintiffs. The payment by them was not constrained or compulsory. It would follow, then, that on the facts of the case, about which there is no conflict or uncertainty, the plaintiffs ought not to maintain this action.

The judgment is reversed, and a venire facias de novo awarded..