ii. Void Ordinances.

TOWN COUNCIL OF CAHABA v. BURNETT.

34 ALA. 400.-1859.

ACTION to recover back money paid for a license under an ordinance which was thereafter held to be void.

A. J. WALKER, C. J.-It is the law of this state that where money has been voluntarily paid, through mistake or ignorance of law, with a full knowledge of the facts, and without fraud or imposition, it cannot be reclaimed, either at law or in equity. While we are aware that this proposition is too broad to harmonize with all the decisions, yet it is supported by the great preponderance of adjudged cases, both in England and America, and by what we conceive to be a sound policy, and has been too often recognized in our jurisprudence to be now denied. For these reasons, and because the subject has been recently examined with care in this court, we decline to enter upon a discussion of the subject. Gwynn & Wife v. Hamilton, 29 Ala. 233; Rutherford v. McIvor, 21 Ala. 756; Knox v. Abercrombie, II Ala. 997.

That the payment of the money sought to be regained by this suit was made with a full knowledge of all the facts, in the absence of fraud or imposition, and on account of a mistake or ignorance of the law, is clear, and is not controverted. The proposition with which this opinion commences therefore leaves the plaintiff no ground for his demand, if the payment was voluntary; and the fate of the case hangs upon the single question whether, in the eye of the law, the payment was voluntary or compulsory.

Without being thereto directly called or requested, the plaintiff went to the proper officer of the town council, and paid to him the sum required by the ordinance to procure license to retail liquor in the town for the remainder of the year. The money was accepted, the license issued, and the defendant accordingly retailed liquor within the town. The ordinance fixing the price of the license has since been declared void. Other ordinances prescribed a liability to a fine of $50 for every day upon which any person might retail liquor without license, and to imprisonment for a time not exceeding three days, if the fine was not paid. The payment of the price of the license was purely voluntary, unless the prospect of proceedings whereby he would be subjected to fine and imprisonment (if he failed to pay it) amounted to compulsion. There was no fraud, no confidential relation, no personal exaction. The ordinances do not appear to have been adopted otherwise than in the fullest confidence of their validity, and it is most probable that the plaintiff's proposal to pay the prescribed sum was under a conviction of legal duty. It does not affirmatively appear that the plaintiff was influenced by an apprehension of proceedings against him; but, if the presumption

that he was can be indulged, it does not afford a sufficient predicate for the conclusion that he acted under what the law deems compulsion. That money has been paid under the apprehension of judicial proceedings, is no reason why there should be a reclamation.

If the influence of the mere apprehension of judicial proceedings is legal compulsion-if, when a party, having the alternative to pay or submit to a judicial investigation, elects the former, he can be said to act under a legal duress, then the distrust of the adequacy of the courts to protect and maintain the right is justified, and it is acknowledged that the perils of justice and right in the judicial tribunals are so great as to deprive one of his free volition, and shield him from responsibility. The law does not recognize its amenability to such a reproach. In consequence of the imperfection incident to all that is human, wrong may sometimes prevail in the purest and wisest judicial tribunals; yet, in theory, there is in our law a security for every right, and a redress for every wrong; and the practical operation of the law corresponds, in the main, with its profession. No one can be heard to say that he had the right and the law with him, but he feared his adversary would carry him into court, and that he would be unlawfully fined and imprisoned; and that being thereby deprived of his free will, he yielded to the wrong, and the courts must assist him to a reclamation.

Again: Another reason why a recovery should not be had in such a case is, that it would enable one, by paying a claim about to be asserted by suit, to fix his own time, within the statute of limitations, for the litigation. He might prefer to pay off the claim, and take the chance of his adversary's losing his testimony within the period of limitation from the time of payment; thus affording him an opportunity to regain the sum paid, when peradventure it might be made to appear, under the facts then extant, that the payment was not required by the law.

Furthermore, if the principles contended for were allowed, it would injuriously affect the party to whom the payment was made. Regarding the money as his own, he might be induced to adopt a style of living, or to dispense benefactions not justified by his fortune. So far has this been carried in Pennsylvania, that a recovery of taxes illegally assessed was denied, because the borough which had received the payment had expended it in improvements. Borough of Allentown v. Saeger, 20 Penn. State R. (9 Har.) 421. While we will not now endorse that case in its full extent, it illustrates the view which the courts take of the injustice involved in such suits; and it is the more appropriate here, because it was proved that most, if not all the money, had been expended by the corporation; and, it may be, in improvements, the benefits of which are shared by the plaintiff himself.

* * *

If money be extorted as a condition upon which an officer will grant a license, the clearance of a vessel, or the like, when the party is legally entitled to it, the payment is involuntary. Morgan v. Parmer, 2 B. & C. 733; Ripley v. Gelston, 9 Johns 201, and Elliott v. Swart

wout, 10 Pet. 137. The plaintiff cannot invoke that principle, because if it be conceded that he was entitled to have license issued from the corporation, the money was not extorted from him as the only agency by which he could obtain the license, but of his own volition he went forward and proposed the payment. He who received the payment was merely passive: he made no demand, no exaction. The distinction is between the cases where a party, acting from his own volition, makes a payment, upon the suggestion of his own mind that it is legal, to an officer who accepts it because he also deems it legal; and where a party demands that which is due him from the officer, and the latter exacts the payment as the only condition upon which he can obtain that which is legally due from that officer. the former case, the payment is voluntary; in the latter, involuntary. This distinction is taken and sustained in several of the cases above cited. Robinson v. City of Charleston, 2 Richardson 317; Sprague v. Birdsall, 2 Cow. 419; Maxwell v. Griswold, 10 How. 256; Elliott v. Swartwout, 10 Peters 137; Atlee v. Backhouse, 3 M. & W. 632; Amesbury Woolen & Cotton Man. Co. v. Inhabitants of Amesbury, 17 Mass. 461.

Upon the last point above stated in this opinion my brethren express no opinion. They think there is no necessity for deciding that point, and that the decision of the other points is conclusive as to whether the payment was voluntary. I think differently. I understand the plaintiff to plant himself upon the proposition that the payment was involuntary for two reasons: First, because of the liability to fine and imprisonment in the event of his not paying; and, second, because the payment was made to procure a license to which he was entitled without such payment. In my opinion, we are not authorized to affirm that there was error in the overruling of the demurrer to evidence, unless we can decide both these propositions against the plaintiff.

The court is unanimous in the conclusion, that, upon the facts, the plaintiff had no right of action whatever, and the court erred in adjudging the demurrer to evidence in his favor.1

1

Accord, Cook v. Boston, 9 Allen (Mass.) 393 (1864), the court saying: "The plaintiffs here voluntarily sought and obtained a privilege, and enjoyed it during the term of their license. They elected to take it, knowing that the city claimed therefor the sum they paid, as the just and proper sum to be paid therefor. They could have been subjected to no penalties for breach of the by-laws of the city in the use of their wagons, without a full opportunity to contest their legality. Their case is not one where the money can be recovered back on the ground of duress;" and adding as to the effect of protest that "the fact that the money was paid to the defendants under protest does not affect the case, where the payment was made under circumstances like the present." Accord, Camden v. Green, 54 N. J. L. 591 (1892); and see the opinions in Baldwin v. Village of Chesaning, 154 N. W. 84 (Mich. 1915).

Upon the question as to whether a license fee is a tax the court in Mays v. Cincinnati, Oh. St. 268, 273 (1853), says: "Was the sum demanded by the ordinance for the license to trade a tax? The sum required is limited only by the discretion of the council, but whatever it may be, it goes into the city treasury and constitutes a part of its general fund. The term has been correctly defined to be one of general import, including almost every species

MAYOR AND COUNCIL OF WILMINGTON v. WICKS.

2 MARV. (DEL.) 297-1896.

THIS was an action brought to recover back $10, amount paid for license under what was termed the milk ordinance, which provided: Section 3. Each and every person or persons desiring to engage in the business of selling milk or cream in the City of Wilmington shall apply to the board of health for a license.

Section 5. Provided that any person engaged in said business who should not take out such a license, should, upon conviction before the municipal court, forfeit and pay a sum not exceeding $10 for the first offense, and for the second offense, $25, and should forfeit his license.

Section II. Provided that the milk inspector shall prosecute before the municipal court all offenders against this ordinance.

At the trial it was admitted that the money paid has passed into the city treasury and is now in possession of the defendant; and that this ordinance, subsequent to the payment by the plaintiff of the fee for his license, was declared void.

The plaintiff testified that he was engaged in the milk business previous to the 18th day of April, 1895, the date of the passage of the milk ordinance; that during the month of May, of 1895, he received notice from the city with a copy of the ordinance, and a few days after that the following notice appeared in the newspapers:

"All persons engaged in the sale of milk are hereby notified to take out a license, as provided in the ordinance, on or before Saturday next, June 8. After that time any person engaged in the sale of milk who has not complied with the law will be prosecuted. By order of the board of health. W. C. R. COLQUHOUN, Secretary."

He said that in preference to being fined and having to pay for the license, he considered it best to pay the license, and went to the office of the board of health and paid it to Mr. Colquhoun. "If that is the law I propose to be a law-abiding citizen, and if this is not the law expect to have my money back." He said, "Well, I will tell you straight; I will be damned if you get your money back." He also said, "If I sold a half-pint of milk, I had to pay that license or be arrested." The plaintiff thereupon paid the fee and got the li

cense.

of imposition on persons or property for supplying the public treasury, as tolls, tribute, subsidy, excise, impost or customs. In a more limited sense, it is the sum laid for the same purpose upon polls, lands, houses, personal property, professions and occupations. Whether regarded in the larger or more limited sense, the sum here exacted is clearly included. A license may include a tax or it may not. If the exaction goes no further than to cover the necessary expenses of issuing it, it does not; but if it is made a means of supplying money for the public treasury, we agree with the court in State v. Roberts, 11 Gill & Johns. 506, that it is a tax, is too palpable for discussion.'"

LORE, C. J. (charging the jury).—This is an action brought to recover back money that was paid by Wicks, the plaintiff, to the City of Wilmington for a license to sell milk. Wicks claims to have paid the money under protest and involuntarily. Upon an examination of the case, as presented to the court and jury, the court think that it is a case of voluntary payment, and not of involuntary payment in contemplation of law. We therefore direct you to find a verdict in favor of the mayor and council of Wilmington, defendant below, appellant.

CITY OF HELENA v. DWYER ET AL.

65 ARK. 155.-1898.

ACTION by Dwyer Bros. against the city of Helena. From a judgment for plaintiffs, defendant appeals. Reversed.

The appellees, Dwyer Bros., brought suit in the Phillips circuit court against the appellant to recover certain sums of money which were paid by them at various times from January, 1893, to February 1, 1895, as a license for keeping a meat market in the city of Helena, amounting in the aggregate to the sum of $109. The complaint, among other things, alleges that these various amounts were paid to the said defendant (appellant) against their will, illegally, and under protest and duress of law, as a license to them for keeping a meat market in said city; that the amounts were collected at different times by the collector of said city, who was also the chief of police thereof, under an ordinance passed by said city; that they were compelled to pay said sums of money in installments, from time to time, whenever called upon by said city officers, to prevent being arrested and subjected to the payment of a fine upon their failure to pay the same, there being a penalty attached to said ordinance, which subjected one to the payment of a fine, and arrest, who failed to pay the same when called upon by the proper officers of said city; that the ordinance was unconstitutional and contrary to the laws of the state; and that the city had no right to collect the same. The appellant answered, denying the illegality of the ordinance, and charged that the various sums paid to appellant by appellees were paid freely and voluntarily, without question, fraud, mistake, threats of arrest, or duress of any kind whatsoever, and were also paid prior to the repeal of ordinance referred to. The section of the ordinance prescribing the penalty for violation of this ordinance is as follows: "Be it ordained, that any violation of this ordinance shall subject the offender to a fine of not more than $25 for each offense, to be adjudged by the mayor or jury trying the case." This is the only part of the ordinance necessary to set out, as the appellant does not contend here that the ordinance was valid, but only con tends that the payments by appellees were voluntary. The court