132 P. 306 | Idaho | 1913
— In the latter part of March, 1911, respondents applied to the council of Boise City for a retail liquor license for a period of six months, commencing April 1st, and accompanied their application with the required license tax of $600. The license was thereupon granted, and thereafter on the 8th of May, 1911, the council summarily revoked the license theretofore issued, entering of record as their reason therefor that the parties “had been shown to be unfit persons in the judgment of the council to conduct a saloon.” This action was subsequently instituted for the recovery of the sum of $473.35, together with interest thereon from the date of the cancelation of the license, as representing the unearned portion of the license money. The city filed a demurrer to the complaint, alleging that the complaint failed to state facts sufficient to constitute a cause of action. The demurrer was overruled, the city refused to plead further, and judgment was thereupon entered against the city and in favor of respondents.
It appears that at the time of these transactions there was in force in Boise City an ordinance known as Ordinance No. 871, and that sec. 17 of that ordinance provided that if any person should be convicted a second time for violation of any of the provisions of any of the ordinances of Boise City relating to the sale and disposal of intoxicating liquors, such person should be punished for such second violation by both such fine and imprisonment prescribed by the ordinance violated, and that in addition thereto the council might annul and declare forfeited the license issued to such person.
It is argued by respondents that the city, having passed this ordinance with reference to the revocation of a liquor license by a second conviction, could not while such ordinance was in force and effect, summarily and arbitrarily revoke a liquor license, but that, on the contrary, the council had set a limit to its discretion by the provisions of this ordinance. This contention is not sound. This ordinance was not self-' operative. It did not direct any officer to forthwith cancel the license, but it still left it to the city council to act. Besides, a city council could not thus limit a discretion vested in it by the legislature. There can be no reasonable doubt about the authority of the city council, under the foregoing charter provision, to summarily and arbitrarily cancel a liquor license which it had previously granted. The authority conferred upon the council by the legislature under subd. 8, sec.
The next and only remaining question to be considered is the right of the respondents to recover the unearned portion of the license money paid. In the first place, it is conceded that there is no statute in this state authorizing a recovery of money paid under such circumstances or the recovery of the unearned portion of a liquor license tax once paid. The general rule recognized by the authorities is that “A license tax voluntarily paid cannot be recovered back unless there is a statute which expressly authorizes such recovery.” (3 MeQuillin, Munic. Corp., see. 1009; 1 "Woolen & Thornton on Intox. Liquors, sec. 497; Joyce, Intox. Liquors, see. 330.) The foregoing rule, however, is subject to an exception which MeQuillin mentions in the footnote to the above cited section as follows: “Where a liquor license granted by the municipality becomes inoperative by the act of the municipality or operation of law, the licensee may recover the unearned portion of his license.” This exception seems to be supported by the following authorities: Pearson v. City of Seattle, 14 Wash. 438, 44 Pac. 884; Bart v. Pierce County, 60 Wash. 507, 111 Pac. 582, 31 L. R. A., N. S., 115Í; Hirn v. Ohio, 1 Ohio St. 15; City of Marshall v. Snediker, 26 Tex. 460, 78 Am. Dec. 534; Martel v. East St. Louis, 94 Ill. 67; Allsman v. Oklahoma City, 21 Okl. 142, 95 Pac. 468, 17 Ann. Cas. 184, 16 L. R. A., N. S., 511.
While the city council in this case revoked the license previously granted to respondents, it cannot he said from the record here presented that their cancellation of the license was the result of any fault of the city or of the city council. On the contrary, the inference might properly be drawn from the record that the respondents had been running a disreputable place and that their conduct had satisfied the council that they were not fit persons to conduct the saloon
In view of these difficulties and dangers, and the still more essential fact that the legislature of this state has never seen fit to enact a statute authorizing such a return of unearned license money, we feel that the court ought not at this time, and in the face of these conditions, to depart from the well-established rules of law governing this question, and embark upon a policy of compelling cities, towns and counties to repay unearned license money every time a license is revoked, unless it be clearly established that the party who procured the license was in no way responsible for the revocation and that his conduct in running the business had in no way caused the revocation. In other words, no recovery should be allowed unless the evidence clearly shows that the fault lay wholly with the city, town or county or authorities representing them instead of with the' party holding the license. When a person applies for a liquor license, he is seeking a privilege rather than a natural right, and he does so with full notice of the conditions of the statute governing that business and of the power of the authorities to cancel his license at any time, and that there is no authority for a return of any of his license money in case of a revocation of the license. So it is one of the risks and chances of the business which he assumes when he procures his license.
We conclude, therefore, that the judgment of the trial court should be reversed, and it is so ordered. The cause is remanded, with direction to the trial court to sustain the de