City of Camden v. Green

• Decision Date: 14 November 1892
• Citation: 54 N.J.L. 591,25 A. 357
• Parties: CITY OF CAMDEN v. GREEN.
• Court: New Jersey Supreme Court

25 A. 357

54 N.J.L. 591

CITY OF CAMDEN

v. GREEN.

Court of Errors and Appeals of New Jersey.

Nov. 14, 1892.

(Syllabus by the Court.)

Error to court of common pleas, Camden county; Hugg, Judge.

Action by John K. Green against the city of Camden to recover part of a license fee. Judgment for plaintiff. Defendant brings error. Reversed.

John W. Wartman, for plaintiff in error.

Willard Morgan and D. J. Pancoast, for defendant, in error.

DIXON, J. In accordance with the provisions of "An act to establish an excise department in cities of this state," passed April 8, 1884, and its supplements, (Revision, Supp. p. 695,) a board of excise commissioners was organized in the city of Camden, and thereby became vested with the power to make, establish, amend, or repeal ordinances and by-laws, to license, regulate, or prohibit inns and taverns, restaurants, and beer saloons, within the city, but the fees for licenses granted by the board were to go into the city treasury. By ordinance passed April 9, 1890, the board fixed the fee for a license to sell spirituous, vinous, malt, or brewed liquors, in quantities less than one quart, at $500; and on July 2, 1891, the board granted a license for such purposes to the plaintiff, who thereupon paid said fee to the city clerk, who turned it over to the city treasurer. Forthwith the plaintiff brought suit against the city of Camden to recover the sum of $200, on the ground that, under "An act to create county boards of license commissioners and to define their powers and duties," approved March 20, 1891, (P. L. 1891, p 221,) a county board of license commissioners had been appointed for Camden county, and before July 2, 1891, had reduced the fee for liquor licenses in the city of Camden to the sum of $300. At the trial of the suit the plaintiff proved the creation of the city board, its ordinance fixing the fee at $500, the issuance of the license to himself, his payment of the fee, the administration of an oath of office to three persons claiming to be members of a county board of license commissioners, and the receipt, on July 1, 1891, by the city board, of a communication, which purported to come from the county board, and to contain a resolution of the latter board dated June 29, 1891, reducing the fee to $300. Upon this proof the trial judge directed a verdict for the plaintiff for $200, and an exception to this direction presents the error now assigned.

Counsel for the city urged the unconstitutionality of the act of 1891 as his main reason for reversal, but that point need not be considered, for, upon other grounds, the direction was clearly erroneous. In the first place, there was no legal evidence that the alleged county board had taken any action to reduce the fee. No proof was offered of the authenticity of the communication received by the city board, and it was not of a character to prove itself. But, in the second place, if such action had been lawfully taken and lawfully proved, the payment by the plaintiff was voluntary, and hence could not be recalled. There is nothing in the case to indicate that the plaintiff was ignorant of the fact of reduction, if it existed, and no suggestion of fraud was made. The case, then, could have been only this: The city board, claiming the legal fee to be $500, although the county board had ordered that it be reduced to $300, and being willing to issue a license to the plaintiff on payment of what it considered the legal fee, the plaintiff, with full knowledge of the facts, paid $500, and received the license. In such a transaction there is nothing to take the...