Bailey v. City Of Raleigh

• Decision Date: 22 April 1902
• Citation: 41 S.E. 281,130 N.C 209
• Court: North Carolina Supreme Court
• Parties: BAILEY v. CITY OF RALEIGH.

41 S.E. 281

130 N.C 209

BAILEY

v.CITY OF RALEIGH.

Supreme Court of North Carolina.

April 22, 1902.

INTOXICATING LIQUORS—LICENSE TAXES—REFUNDING—VALIDITY. Under Laws 1901, c. 327, requiring municipal corporations to refund the amount of any tax or assessment collected from persons doing business outside the corporate limits, a city, having legislative authority to regulate the sale of liquors within a mile of its corporate limits, and to receive the license taxes paid therefor, cannot be required to return them, as the legislature was without power to require it to refund them.

Appeal from superior court, Wake county; Robinson, Judge.

Action by A. L. Bailey, administrator, against the city of Raleigh, to recover certain money paid for license to sell liquors outside the corporate limits. There was a judgment for plaintiff, and defendant appeals. Reversed.

W. L. Watson, for appellant

D. L. Russell and E. J. Best, for appellee.

FURCHES, C. J. The plaintiff's intestate resided within one mile of the corporate boundaries of the city of Raleigh, and during the years 1888, 1892, 1893, and 1894 carried on the business of a retail liquor dealer within one mile of the city limits. In the year 1888 he paid the city $50 for license to carry on said business, and in 1892 he paid $300, in 1893 he paid $300, and in 1894 he paid $150—making, in the aggregate, $800. The legislature of 1901 passed an act (chapter 327) which the plaintiff contends authorizes him to recover back from the defendant city this amount ($800) and interest thereon. The statute provides that where any city, town, or municipality has collected any tax or assessment upon property "outside of the actual charter or incorporate limits of such town, city or municipality, or where any town, city or municipality shall have collected a privilege tax or assessment upon any person or persons doing business outside of the actual charter or incorporate limits or boundaries as aforesaid upon such business, said town, city or municipality shall refund to such person or persons or their proper representatives the amount of such tax or assessment." It is not denied but what the city charter and the acts of the legislature, in terms, authorize the city to issue the licenses and collect the tax. This presents the question, and there is no doubt but the act in terms is sufficiently comprehensive to cover the case (as it was in all probability intended to do) and to enable the plaintiff to recover, if it was within the legislative power to give him this right.

As a general rule the legislature may give a remedy, but not a right; that is, where there is a cause of action, the legislature may provide the means by which such cause of action may be enforced; but it cannot make a contract for parties, nor can it take the property of one person and give it to another. No man shall be "disseised of his property except by the law of the land"; that is, by the judgment of a court of competent jurisdiction, in which he is a party and afforded an opportunity to defend his rights. These propositions are too elementary to require citation of authority. The legislature, for the public good, may require certain things to be done, and it may prohibit the doing of others, and it may provide a penalty for their violation. But this is for the public good, and not between parties, and these can never be retroactive. And, as the legislature cannot determine the rights of parties, and has no means of enforcing its judgments, if it could be said to have any, all that chapter 327 can be understood to mean is that the legislature opens the doors of the courts to the plaintiff to prosecute his claim, and, by this statute, says, if the city has collected this money wrongfully, you shall have it back. Municipalities being a part of the state, the rule laid down above as applying to individuals is somewhat modified in its application to municipal corporations. The principle is not abandoned, but slightly modified, so as to allow such legislation to this extent: that if the plaintiff has a just and meritorious demand against the city, in which the city has wrongfully received his money, labor, or property, but for some technical reason he is not able to recover it back, the legislature may specially provide for his relief, as in chapter 327; as in Guthrie Nat. Bank v. City of Guthrie, 173 U. S. 528, 19 Sup. Ct. 513, 43 L. Ed. 796, where parties had acted as officers of the defendant before it was incorporated, and had been given certificates of indebtedness for their services, which had been transferred to the plaintiff. After the defendant was incorporated, it refused to pay these certificates, upon the ground that they were issued before the defendant was incorporateed. This was held to be a legal technical ground of defense, but the fact remained that the defendant had received the services of these officers, policemen and others, and the legislature passed an enabling act, similar to chapter 327. The court held that the city had received the benefit of these services, sustained the validity of the act, and the plaintiff recovered. But the same opinion held that this could not be done unless there is a moral obligation to pay. The same doctrine is held in City of New Orleans v. Clark, 95 U. S. 644, 24 L. Ed. 521, and the same in many other opinions and by leading text writers. Indeed, it seems to be the general rule, and, so far as we have seen, it is almost without exception. But all the text-books and decisions declare, in express terms, that this doctrine does not obtain except in cases where there is a moral obligation to pay, or a legal or equitable right exists that cannot be enforced for some technical reason. Black's Constitutional Law, on page 380, after announcing the doctrine above stated, says, "But the legislature cannot compel a municipal corporation to pay a claim which it is under no obligation, legal or moral, to pay; nor can it require a court to render judgment on proof of the amount thereof." Dillon's Municipal Corporations, on page 130, after announcing the doctrine that where there is a legal or moral obligation to pay, but which cannot be enforced, proceeds to say: "The cases on this subject, when carefully examined, seem to the author to go no further, probably, than to assert the doctrine that it is competent for the legislature to compel municipal corporations to recognize and pay debts or claims, not binding in strict law, and which for technical reasons could not be enforced in equity, but which, nevertheless, are just and equitable in their character, and Involve a moral obligation. To this extent, and with this limitation, the doctrine is unobjectionable in principle, and must be regarded as settled, although it asserts a measure of control over municipalities, in respect to their duties and liabilities, which probably does not exist as to private corporations and individuals." In a leading note of Mr. Freeman in the case of Hasbrouck v. City of Milwaukee. 80 Am. Dec, on page 733, it is said: "But It [the legislature] cannot compel the payment of a claim which the city is neither under a legal nor a moral obligation to pay." For this he cites People v. Burr, 13 Cal. 343; Smith v. Morse...