95 P. 468 | Okla. | 1908
The only question for us to decide is whether the licensee may recover back the unearned portion of the license fee where the license fails without fault of the licensee. It would seem that this should be answered in the affirmative on the plainest principles of natural justice. It is contended, however, that this is an action in the *145
nature of assumpsit, and as such it can only be based upon some contractual liability arising out of property rights, and that, as such licenses are not contracts (Prohibitory Amend. Cases,
In looking over the wide field of adjudication, we find that in no state does the question herein propounded seem to be settled, except in Nebraska, from which the territory of Oklahoma adopted its statutes regulating the license and sale of intoxicating liquors, and, while we are not bound to follow the decisions of the Supreme Court of that state on this subject, yet, "so far as these decisions are consistent with logic and reason, we feel constrained to follow them." Swan v.Wilderson et al.,
Turning to those decisions, we find that in Lydick v. Korner,
"He was entitled either to a license or a return of the money *146
paid for the same, at least pro tanto for the unexpired time upon the cancellation of the license, and the court should have directed its repayment. This is but justice." (Citing State v.Cornwell,
In State of Nebraska v. Cornwell, supra, relator paid the necessary fee for a license to sell intoxicating liquors, and one was issued. Through certain omissions of the corporate authorities required by law the license was void. "Subsequently the required steps were taken, whereupon relator applied for a license on the credit of his former payment and for the unexpired term for which he paid, so far as it would go," the money not being returned to him, and the court held that he was entitled to it.
In City of Auburn v. Mayer,
"It has been too long and too well settled by decisions of this court to permit of any change, except through legislation, that the license fee is not paid for the privilege of asking for a license, but for the license itself, and that, where the license fails through no fault of the applicant, he is entitled to have refunded the unearned portion." (Citing State v.Cornwell,
In School District No. 34 of Thayer County v. Thompson,
"Where a liquor license has been issued and is thereafter canceled without fault of the licensee, he is entitled to a repayment pro tanto of the sum paid for the unexpired time."
In Pearson v. City of Seattle,
"Conceding that the city, in the exercise of its police power, had a right to revoke respondent's license, as it did virtually revoke it by Ordinance No. 3,152, yet it does not follow that it has a right to retain the money received for a license for a time during which such license was rendered valueless by its own act. The respondent paid his money for a consideration which he has, in part, failed to receive, by reason of the act of the city. On the other hand, the city has received money for the granting of a privilege which it has repudiated and annulled. It is therefore in justice and equity bound to repay it." (Citing Lydick v. Korner,
In Hirn v. State of Ohio,
"The court is not disposed to question the power of the Legislature in a matter of this kind, connected as it is with the public policy and domestic regulations of the state. Upon the ground of protecting the health, morals, and good order of community, we are not prepared to say that the Legislature does not possess the power to revoke such license. But where there has been no forfeiture of the license by abuse or violation of its terms, common honesty would require that the money obtained for it should be refunded in case of its revocation. The act of March 12, 1851, did not, by its terms, take effect until the 1st of May of that year, up to which period licenses could have been granted under the law of 1831. It is not reasonable to presume that the Legislature would, after authorizing a license and allowing the granting of it till a particular period, and after obtaining thereby the payment of many thousands of dollars into the treasury, revoke the license before the expiration of the term for which it was granted, without reimbursement. At least the court will not presume any such act of bad faith from mere implication."
We are not unmindful of the force of defendant's contention that the license tax, being legal at the time it was paid, and being paid voluntarily by the licensee, cannot be recovered, and we *148
have carefully noted authorities cited in support thereof, especially Peyton v. Hot Springs Co.,
Directly in conflict with that opinion is R. M. Sharp,Appellant, v. City of Carthage, Respondent, 48 Mo. App. 26, where a similar contention was made. In that case appellant had a county dramshop license expiring November 1, 1887, and a city license expiring October 1, 1887. A city election had been called to be held on September 2, 1887, under the provisions of the local option law, for the purpose of submitting the question to the qualified voters of the city whether or not intoxicating liquors should be sold therein. One day previous to the election appellant made application to the city for a dramshop license for one year, which was issued upon his paying the sum of $800 into the city treasury. A city ordinance provided that no dramshop license should issue for a less or greater period than one year. On November 1st, his county license having expired, he applied to the county court of the county for a county license, which was refused him for the reason that the city had adopted the local option law. Failing to procure the county license, he closed his saloon and demanded of the city the return of $600 of his money, paid September 1st, and upon its refusal sued to recover the same. The lower court held that he was not entitled to recover. The Supreme Court reversed the case, and in passing said:
"Money illegally or erroneously, but voluntarily, paid for license taxes cannot be recovered back. Grimley v. Santa ClaraCo., *149
This same contention was made in Marshall v. Sneidker,
"It is contended that the payment of the license tax imposed by the city was voluntarily made by the defendants, and that for that reason they cannot recover back the money so paid. * * * The ordinance of the city council required the defendants to obtain a license before retailing liquor, and imposed a heavy penalty for its violation. The defendants, by refusing to pay, would have placed themselves in the attitude of resisting the public authorities, and would have exposed themselves to the certain harrassment of litigation, and to the great hazard of ruinous *150
loss, if they should fail in that resistance. * * * It has often been held that if a party pay money voluntarily, in ignorance of law, but with a knowledge of all the facts, he cannot recover it back. Bilbie v. Lumley et al., 2 East, 469.Contra, Warder v. Tucker,
Hence we say that this is not a case of money illegally or erroneously, but voluntairly, paid for a license tax, but one in which it has been paid strictly in conformity to law the object of which has failed without fault of either party resulting in a change of governmental policy in which the voters of the city of Oklahoma City participated. It follows that defendant in error has received money belonging to plaintiffs in error to the amount set forth in their petition, which it is not in equity and good conscience entitled to retain, for which this action will lie, and that the trial court erred in sustaining the demurrer thereto.
The cause is reversed and remanded.
All the Justices concur. *151