Commissioners v. Norris

62 Ga. 538 | Ga. | 1879

Jackson, Justice.

The great fact on which this case turns, in our judgment, is that Norris voluntarily paid the license to retail liquors, acted under it, and got the consideration in full for which it was paid.

The town of Thomson had jurisdiction to grant license to retail spiritous liquors, and this fact takes this case without the case of Callaway vs. The Mayor and Council of Milledgeville, 48 Ga., 309. The city of Milledgeville had no authority for any sum whatever to grant such license.

1. The principle ruled there will not be extended beyond cases covered fully by similar facts to those in that case, that is, to cases where the grant of the license for any sum was beyond and without the jurisdiction of the municipal corporation granting it. Where the question is only as to the amount of license fees, and such amount is paid without any compulsory process whatever, we think a distinction can be drawn; and the principles of justice and the great current of authority demand that the rule in that case laid down be not extended where other facts exist than are in that case, making a different case.

2. The truth is that the authorities run counter if not to the decision, at least to the reasoning in that case, and they are so overwhelming as to sweep away all obstructions which may be interposed by obiter dicta or reasoning unsupported by prior authority. See authories cited by plaintiffs in error: 2 Dillon, 751; Cooly on Taxation, 566-8-9; Burroughs, 442-3; 31 Penn. St., 73; 1 Ohio St., (N. S.) 268; 46 California, 589; 13 Am., 220; 10 Allen, 48; 24 Conn., 88; 13 Abbott, 351; 2 Sandford, 475; 29 Barbour, 85; 51 Barbour, 159; 27 Maine, 145; 15 Missouri, 563; 20 Missouri, 143; 10 Peters, 137; 15 Wallace, 75; 12 Pick., 13; 13 Gray, 476; 8 Cushing, 55; 10 Peters, 150; 9 Cowen, 674; 18 California, 274; 115 Mass., 367; 70 N. C., 55; 52 Missouri, 167, etc., etc.

Therefore, we lay down the principle announced in the syllabus at the head of this opinion, that where the corporation has jurisdiction over the subject matter of the grant of license to retail liquors, and the amount of the fee is paid voluntarily, without execution issued therefor or compulsory process of any sort, or even threat to issue such process, the party so paying more than was authorized except by an amendment of the charter afterwards declared unconstitutional, cannot recover back the overplus. The principle might be made broader, but this will do to cover this case.

Judgment reversed.