132 Ky. 616 | Ky. Ct. App. | 1909
Opinion op the Court by
Reversing.
This action was brought by appellant to recover of appellees, composing the board of trustees of the town of New Castle, $353.40, with interest from June 5, 1907, upon the ground that the previous payment by him to the board of that sum had been .made by mistake and without consideration.
The facts alleged8in the petition as manifesting the right of recovery were, in substance, that for several years prior to July, 1906, and on that date, appellant owned and conducted a saloon in the town of New Castle, wherein were sold spirituous, vinoiis, and inalt liquors. In 1905 a vote was taken in the town of New Castle as to whether such liquors should be sold within the corporate limits of the town; the election resulting in favor of the sale. In June, 1906, a vote was taken in the county of Henry, of which New Castle is the county seat, as to whether spirituous, vinous, or malt liquors should be sold therein, which resulted against the sale. Following the last election, the question of whether the vote in the county of Henry against the sale of liquors nullified that of the previous year taken in the town of New Castle arose, and, as the question had not then been passed on by this court, it seemed to excite quite a diversity of opinion among lawyers and laymen of the town and county. As appellant’s license which had been obtained before the taking of the vote in the county was about to expire, and he in good faith desired to con
It is insisted for appellant that the town of New Castle is entitled to retain only so much of the $500 license fee he paid it as will cover the period of 107 days during which he conducted his saloon under the license granted him; that is, from January 16, 1907, down to and including May 3, 1907, which would amount to $146.60, and that the ' remaining $353.40 which was paid by him to conduct the saloon under the license granted him for so much of the time as intervened between May 3, 1907, and January 16, 1908, sould be repaid to him, as it was unearned by the town of New Castle and was paid by him to its board of trustees without consideration and under a mistake of law. The board of trustees refused, however, to return appellant the $353.40 in question, and this action, as before stated, was brought by him to recover it. Appellees filed a general demurrer to the petition, which the court sustained and dismissed the action; hence this appeal..
So the question presented by the appeal is: Can appellant, the consideration having failed, recover the money claimed, which, though paid' with knowledge of the facts, he nevertheless parted with under a patent mistake of law? When appellees refused
The following admirable statement of this principle may be found in Northop v. Graves, 19 Conn. 548, 50 Am. Dec. 264, quoted with approval in City of Louisville v. Anderson, etc., 79 Ky. 340, 42 Am. Rep. 220: “We mean to distinctly assert that when money is paid by one under a mistake of his rights and duties, and which he was under no legal or moral obligation to pay, and which the recipient had no right in good conscience to retain, it may be recovered back whether such mistake be one of fact or law; and this, we insist, may be done both upon the principles of Christian morals and the common law.” We are unable to see upon what principle of good morals or
"We do not agree with counsel for appellees that a license such as appellant paid is a mere tax, which, when voluntarily paid, cannot ■ be recovered. It is true that a tax, when voluntarily paid, cannot be recovered, though illegally collected L. & N. R. R. Co. v. Commonwealth, 89 Ky. 531, 12 S. W. 1064. But this rule is based upon consideration of public policy; and' because the law provides ample means of correcting an illegal assessment before the process' of collecting the tax begins; hut a license such as appellant paid is on a different footing. As said in Commonwealth v. Central Hotel Company, 121 Ky. 846, 90 S. W. 505. “A license to sell liquor is for the purpose of regulating the traffic, and incidentally to raise revenue. * * * Taxes are levied and collected regardless of the -will or consent of the taxpayer, and
Wherefore the judgment is reversed and cause remanded, with directions to overrule the demurrer, and for further proceedings consistent with the opinion.