Lead Opinion
Opinion op the 'Court by
— Affirming.
Tbе identical question presented by tbis record was before us in tbe case of Spalding v. City of Lebanon,
In tbe ease we have tbe appellee, also a dealer in soft drinks, рaid to tbe city, under tbe same ordinance, four hundred dollars, and, upon discovering that tbe ordinance was void, brought this suit to recover what be bad paid, and from a judgment in bis behalf tbe city appeals.
Under tbe authority of tbe Spalding case, аnd adopting tbe views therein expressed as conclusive- of tbe question arising on tbis record, we might well close tbe opinion by affirming tbe judgment. In deference, however, to tbe urgent insistence of counsel for tbe city that tbis record presents a question not involved in tbe Spalding case sufficient to defeat tbe action brought by tbe appellees, we will briefly respond to tbe argument of counsel, which is based on tbe ground that the appellees are estopped to maintаin tbe action.
It was averred in tbe answer of tbe city, to which a demurrer was sustained, that tbe ordinance in question was enacted at tbe request of appellees, who were present when it was adopted by tbe council, and, tbis being so, they are estopped to attack its validity, especially in view of tbe fact that they have enjoyed tbe benefits conferred by the ordinance and received the protection it afforded during tbe time they paid tbe license tax sought to be recovered.
The fundamental error in tbis argument is that tbe ordinance did not confer any benefits or privileges on
The enactment of the ordinance was wholly within the control and power of the city council, and although it attempted to, and doubtless believed that it had, enacted a valid ordinance', it develops that it did nothing of the kind, and, in fact, did not enаct any ordinance. This being so, the situation is precisely the same1 as-if the city authorities, without having attempted to enact an ordinance, had demanded and collected from appellees, without any authority, the license tax рaid under this void ordinance.
In City of Covington v. Sclossar,
“The power to make these assessments is granted alone by the statute, and by its terms alone the validity of the amount that may be charged against the property is to be determined. No question of estoppel can be brought into a case like this. A property owner cannot be estopped by his acts or conduct from objecting to the collection of assessments that are made in excess of the authority to make them. The excess assessment is void from the beginning. Or, to put it in a better way, there could be no assessment' for the excess, аnd so the prop*457 erty owner could not be estopped from contesting the validity of a void act. Thomas v. Woods,128 Ky., 555 ; City of Lexington v. Walby,109 S. W., 299 ."
In Elliott v. Burke,
We are referred by counsel for the city to the case of the Town of Providence v. Shackelford, 20 Ky. L. R., 1921, as announcing a view of the .doctrine of estoppel that would defeat the recovery of the license tax in this case. But in that case it was expressly held that, by virtue of the act assailed, which was valid, the- parties attacking it were protected in the conduct of their business.
We are also referred to City of Lebanon v. Edmonds,
.“By uniting as he did with others in petitioning the General Assembly to pass the act of 1890, extending-the city’s boundary so as to include the lot in question, he is estoрped to now allege that the proposed .taxation is taking his property for public use without compensation.” It will thus be seen that in that case Edmonds was only held to be estopped from challenging a valid act, the passage of which he had aided in securing. A similar question was presented in Ferguson v. Landram,5 Bush, 230 , in which the doctrine of estoppel was applied, as well as in Hoertz v. Jefferson Southern Pond Draining Co.,119 Ky., 824 .
The judgment is affirmed.
Dissenting Opinion
Dissenting Opinion by
The court, in its opinion, holds that this ease is controlled by that of Sрalding v. City of Lebanon, 156 Ky.,
This doctrine was first announced in this State in the leading case of Underwood v. Brockman,
Upon its authority rest the following cases: Ray v. Bank of Kentucky,
An examination of each of these cases will disclose that the court has consistently adhered to the idea that an essential element of the right to recover back money paid under a mistake of law is that the party who received it is not in law, equity and good conscience entitled to retain it; and this requirement has been invariably and impartially exacted in every case in which a recovery has been permitted.
In the case at bar it is alleged in the petition that the ordinance was void because of the irregular mode of its enactment; there is no denial of the right of the city to enact an ordinance of the character here involved. Ahd the court in its opinion expressly concedes that “the enactment of the ordinance was wholly within the control and power of the city council.”
In the Spalding case, supra, it was said that it was. charged by the city that “appellant joined in the petition for the passage of'the ordinance, but the evidence fails to sustain the allegation.”
In this case thе city charges in its answer, and it is admitted as true by the demurrer, that application was made to the city council by the plaintiff and three others for the enactment of an ordinance fixing the license fee for the privilege of vending non-intoxiсating liquors in Lebanon at two hundred dollars per annum, they avow
While the rule is that money paid under mistake of law may be rеcovered back where it ought not in law, equity and good- conscience to be retained, the • converse of the rule is likewise true, i. e., that where it is not contrary to equity and good conscience for the person who received the money so paid to retain it, it cannot be recovered back. City of Louisville v. Zanone,
It follows, therefore, that, under the authorities, the right of the plaintiffs to recover back the money paid to the city as license fees must rest upon broad principles of equity, or be denied. Are they in equity and good conscience entitled to recover this money back?
I believe that, having been instrumental in obtaining the license fee to be imposed, and having operated as vendors of soft drinks for two years under, and received the consequent benefits of, the conditions of limited competition thereby sought and actually enjoyed, the plaintiffs are not in equity and good conscience entitled to restitution.
The city of Lebanon and its authorities have performed in this connection no' wrongful act, from the standpoint of law or equity, morals or good conscience, unless it should be said that it was wrong for the city, at the instigation of the persons involved, including plaintiffs, to enact an ordinance which, of necessity, limited competition in the business of vending soft drinks, so that there were only four such vendors in the city. If that act was immoral, the plaintiffs are in pari ¿Delicto, for they sought it to be done.
The maxim — He who comes into equity must come with clean hands — operates to deny relief to a plaintiff who has been guilty of inequitable conduct in relation to the matter in which relief is sought, or in connection with the conduct of the litigation wherein it is sought.
Was it conscionable for the plaintiffs to instigate the enactment of an ordinance fixing the license fee for the vending of soft drinks at so high a figure as would necessarily operate to prevent persons of small means from embarking therein, for the avowed purpose of restricting the number of persons so engaged and of affording conditions of limited competition?
This is the attitude in which the plаintiffs stand as they- approach the chancellor; and, in my.judgment, as I understand the broad principles of equity in its fundamental aspect, they come not in that purity of motive and rectitude of performance which are essential to one who seeks the interposition of the strong arm of the chancellor.
For the reasons stated, I dissent from the opinion of the court.