102 Ky. 72 | Ky. Ct. App. | 1897
delivebed the opinion of the court.
This action was brought by appellee, W. S. Melton, against the city of Maysville, in the Mason Circuit Court, on the following statement of facts': That on the* 22d day of September, 1891, the appellee applied to the city authorities of Maysville for license to conduct a lottery in said city from that date till January 1, 1892, which was issued to him, and for which appellee paid $250, the ordinance fixing the license fixed the rate at $500 per annum; that
After the court had overruled a demurrer to the petition the appellant filed answer, in which is alleged that the license was issued to appellee at his special instance and repeated request, and on his representation that he had fully complied with the general laws of the State, and was authorized to conduct a lottery in Maysville on the payment of the license due the city, and also averred that at that time •appellee knew1 he had not complied with the State laws in respect thereto, and knew that the Legislature of the State of Kentucky had repealed the charter of the company under which appellee acted, and knew that by said act all license for a lottery enterprise was forbidden, but in the face of this act, and with knowledge of its existence, appellee applied for the license and insisted that it be granted to him; at the time asserting that he had a vested right that the Legislature could not take away by any act, and that he had the right to conduct a lottery upon the payment- of the
By agreement the law and facts were submitted to the court without a jury, and upon trial, the proof introduced shows that the appellee, Melton, went to the treasurer of the appellant and paid him the money and took a receipt' therefor, and took that receipt to the mayor and asked that the mayor issue the license, and that the mayor declined to issue it, assigning as a reason that the same could not be-issued unless the applicant had a State license to conduct a lottery. The appellee then showed a paper to the mayor which appellee contended gave him the authority to conduct a lottery if the city would issue the license. The mayor then suggested that if he would waif till October 1st that the license till January 1st, following, would only cost $125
In support of the judgment of the court below we are referred by counsel to the case of Owensboro v. Elder, 8 Ky. Law Rep., 255. That ease is not directly in point. It seems from the opinion in thait case that the city of Owensboro had agreed to issue to Elder a license to sell liquor, and that he thereupon paid the fee charged, but that the city authorities failed or neglected to issue the license, and, after Elder was indicted for violating the law by selling without license, he was permitted to recover his license money paid. This is evidently on the ground that the city was in fault in not .issuing the license, as it had agreed to do.
We are also referred to the case of Trustees of Stanford
In this case above it is clear that the license was paid and received under an honest mistake of the right of the city to collect same, and this mistake, being mutual and honestly made, we have no doubt was correctly decided, and to its principles we adhere.
We are also referred to Fecheimer v. City of Louisville, 84 Ky., 306. In that case the license was paid by Fecheimer under a threat of penalties for violating the city ordinance, and paid under these circumstances under a mistaken belief that the ordinance imposing the license and penalty was valid, and because they had no practical mode of testing the ordinance except to pay and sue for their money back. The court permitted a recovery becouse the ordinance was void and the payment was made under the circumstances recited.
The case of McMurtry v. Ky. Cent. R. R., 84 Ky., 462, was a case where a party had by mistake paid interest on a judgment which, under the law, could not draw interest, and was allowed to recover it back.
In the case of Gist a-. Smith, 78 Ky., 367, which was an action to recover back usury, and the court, Cofer, judge, says: “But money paid upon a contract declared by statute to be void is not paid under any contract at all, it is paid without consideration, either good or valuable, and may be recovered back unless the transaction is of such as character that the law will not aid either party, which is not the case as to one who pays usurious interest.”
The case of City of Louisville v. Anderson, 79 Ky., 334, is a very long and exhaustive opinion, and was an action for taxes paid by Anderson to the city which the city could not legally exact. The court there holds that taxes paid is not a voluntary payment so as to preclude a recovery, and clearly and unmistakably distinguishes such cases from a payment by a party claiming a right and the recipient of the money, a mere passive agent of the corporation.
The court clearly decides that taxes in the hands of a collecting officer and paid io him are paid under legal duress and not voluntary, and in all such cases, if illegal, can be recovered back, and the court further holds: “The party is required to show, when the mistake originates from his own action as well as that of another, that he has exercised such diligence as a prudent man would exercise in ascertaining what his rights are.”
In the case of L. & N. R. R. v. Hopkins County, 87 Ky., 605, this court, by Lewis, J., recognized the doctrine stated in the case of City of Louisville v. Anderson, and at the
It seems to be well settled in this State that where taxes are paid to a collecting officer who has power of distraint it is not a voluntary payment. It is also well settled that where money is paid under a mutual mistake, which in law, morals and good conscience ought not to be retained, it can be recovered back.
The proof in the case at bar does not show that the money paid for the license to carry on a lottery in the city of Mays-ville was paid through any coercion, but that the payment was sought to be made by the appellee to the authorities of the city of Maysville; that said payment was made to the treasurer of the said city without his solicitation or demand; that when appellee presented the receipt to the mayor and demanded license the mayor doubted authority to issue samé and did not do so till urged by the appellee; that the appellee was representing the owners of the combined lotteries of the State of Kentucky; that appellee knew that the Legislature of Kentucky had repealed the charters of. the companies and the franchises under .which he proposed to operate. The proof as presented shows that appellee did not pay the money for the license under any mistake of fact or of the law.