The opinion of the court was delivered bjr
Thе suit was instituted to recover two license fees paid by plaintiff to defendant, under the requirements of "An ordinance to regulate the gathering of bones, Eat, hides and other offal and refuse from slaughter-houses and meat shops.” This ordinance, upon a writ of certiorari obtained at the instance of the рlaintiff as prosecutor, was set aside by this court. Shoemaker & Co. v. Board of Health, 53 Vroom 33. Having paid two license fees under it the plaintiff, basing its suit upon the illegality of the ordinance thus declared nugatory, seeks to rеcover them.
The inquiry thus presented is whether they are in the category of voluntary payments. The facts are not in сontroversy. On July 3d, 1909, the plaintiff paid, without protest, the required liсense fee of $50. On July 19th, 1.910, the plaintiff paid the license feе for that year and protested at the same time by lettеr against the validity of the ordinance, and the right of defendant to exact the fee. On May 8th, 1911, the writ of certiorari removed the ordinаnce to this court, and on October 20th, 1911, its validity was adjudicatеd. ■
After .the ordinance had been declared invalid this suit was institutеd, and the District Court awarded judgment in favor of the plaintiff. It is difficult to perceive upon what ground the first payment can he recovered, since having been made without protеst, it possesses no distinctive features that can be said tо mark it as other than a voluntary payment. 30 Cyc. 1298, 1301, and cases cited.
The real inquiry, therefore, must be directed to the second payment, which was made while the plaintiff was disputing with the defendant as to the lеgality of the ordinance, and accompanied its payment with a written protest against the right of defendant to exact it.
We think this is fully answered by the reasoning of Chief Justice Beаsley in Davenport v. City of Elizabeth, 12 Vroom 366, &c., speaking for the Court of Errors' and Ap
“In this state,” said the Chief Justice, “a writ of certiorari is a perfect safeguard against unwarranted taxation of every description. This remеdy, too, is so efficient that from the time of its issuing, it is a supersedeas of the proceedings of the officers to whom it is addressed.”
The status of the plaintiff here, therefore, resolves itself into argumentum ab inconveniente for it had thе privilege and opportunity before paying the fee to remove the ordinance upon the claim of illegality to this court, by writ of certiorari, which writ would operate as a supersedeas. It chose the alternative of paying the fee, and thus secure the privilege of operаting under its license almost during the entire license period.
Thе rule in this state is settled beyond possibility of reasonable controversy, that under such circumstances a payment is impressed by law with the character of having been voluntarily made. Camden v. Green,
For these reasons the judgment below will be reversed and judgment ordered entered for the defendant.