City of Prichard v. Hawkins, 1 Div. 372

• Decision Date: 10 May 1951
• Docket Number: 1 Div. 372
• Citation: 53 So.2d 378,255 Ala. 676
• Parties: CITY OF PRICHARD v. HAWKINS.
• Court: Alabama Supreme Court

Page 378

53 So.2d 378

255 Ala. 676

CITY OF PRICHARD v. HAWKINS.

1 Div. 372.

Supreme Court of Alabama.

May 10, 1951.

Rehearing Denied June 28, 1951.

Geo. E. Stone, Jr., and Thos. A. Johnston, III, Mobile, for appellant.

Caffey, Gallalee & Caffey, Mobile, for appellee.

LAWSON, Justice.

This is a suit by M. F. Hawkins, doing business as Davis Service Station, against the City of Prichard for refund of license money paid for the operation of a gasoline service or filling station, which was within the police jurisdiction of the City of Prichard but outside its corporate limits.

The suit is brought on the common counts and the amount claimed in the complaint is $2,520.90, with interest.

The theory of the right of recovery is that the ordinances exacting the payment of the license are unconstitutional and void, since they were in fact revenue measures. Under the provisions of the ordinances the so-called license tax was levied on the operator of the filling or service station.

Defendant, the City of Prichard, filed what is termed a plea in abatement wherein in various forms it is averred that plaintiff was not entitled to recover for the reason that the money was not paid by him, but by his customers, in that the ordinance 'levied a license tax of one cent per gallon on all gasoline sold or delivered at drive-in gasoline filling stations in the Police Jurisdiction of defendant City; that such sums were paid by the plaintiff for and on behalf of the ultimate consumers of such gasoline and such sums were included in the retail price of such gasoline and charged to and collected from the said customers.' Demurrers were interposed to this plea or pleas by the plaintiff, which demurrers were sustained.

Thereupon, the defendant filed special pleas averring in substance that the money paid by plaintiff to defendant and which plaintiff seeks to recover was paid by plaintiff voluntarily, without protest and with full knowledge of the law and facts. Plaintiff's demurrers to such pleas were sustained.

The case went to the jury on plaintiff's complaint, defendant's plea of the general issue and a special plea, numbered F, setting up that plaintiff could not recover because of the fact that his claim was not filed within two years from the time the payments were made or the amounts were due.

Plaintiff rested after introducing interrogatories and answers thereto propounded by plaintiff to the defendant, which interrogatories were answered by the mayor of the city, Mr. C. V. Dismukes. The only witnesses called by defendant were Mr. Dismukes and the plaintiff, Mr. Hawkins.

In its oral charge the trial court eliminated from the consideration of the jury payment made to the City in the sum of $81.11 on the ground that claim therefor had been filed too late.

The jury returned a verdict for the defendant. Plaintiff's motion for new trial having been overruled and denied, he appealed to this court. The opinion of this court rendered on that appeal is reported as Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659. In that case it was said:

'The principles of law controlling on this appeal have been fully settled in our cases beginning with the leading case of Van-Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85, and others may be cited as follows: City of Andalusia v. Fletcher, 240 Ala. 110, 198 So. 64; Alabama Power Co. v. City of Carbon Hill, 234 Ala. 489, 175 So. 289; City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451; Alabama Gas Co. v. City of Montgomery, 249 Ala. 257, 30 So.2d 651.

'The effect of those cases simply stated is that cities are not authorized under the Constitution to levy a license tax on business located wholly within its police jurisdiction and outside the city limits for the purpose of raising general revenue either directly or indirectly; but in levying such an assessment, the amount must be so fixed as to reflect reasonable compensation for the expense of municipal supervision over the particular business or vocation at the place where it is licensed. Van-Hook v. City of Selma, supra.' 249 Ala. 238, 30 So.2d 662.

Applying that principle to the facts presented in the record on appeal, we held, in effect, that the trial court erred in presenting to the jury the question of whether the ordinance was reasonable as applied to the plaintiff; that under the evidence the trial court should have found that the ordinance as applied to plaintiff was unreasonable and therefore void; that the trial court should have charged the jury affirmatively for plaintiff as requested, the requested charge being as follows:

'The Court charges the jury that the ordinance, under which the plaintiff made the payments which he sues to recover, was an ordinance purporting to impose a gasoline license tax on the operators of drive-in filling stations, and that the plaintiff is entitled to recover the amounts paid under such ordinance within two years from the beginning of proceedings by him to recover such payments, and that he is so entitled to recover regardless of whether or not he included in his sales price of gasoline to his customers the amount of such tax.' 249 Ala. 235, 30 So.2d 660.

After remandment, defendant filed pleas 'BB' through 'HH.' These were pleas of set-off and recoupment. On motion of plaintiff these pleas were struck.

At the trial after remandment, the cause was submitted to the jury on the same pleadings as on the former trial. The evidence which was admitted was substantially the same as on the former trial. At the conclusion of the evidence, the trial court gave the general affirmative charge as requested by plaintiff. There was verdict and judgment for plaintiff. Defendant's motion for new trial having been overruled, it has appealed to this court.

The suit is authorized under the provisions of §§ 332-334, Title 51, Code 1940. Suit on the common counts is an appropriate remedy. Hawkins v. City of Prichard, 249 Ala. 234, 30 So.2d 659; City of Prichard v. Richardson, 245 Ala. 365, 17 So.2d 451. Recovery is not dependent upon payment having been made under compulsion or protest. § 332, Title 51, Code 1940; Hawkins v. City of Prichard, supra; L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So.2d 924, and cases cited.

Section 334, Title 51, Code 1940, reads as follows: 'The provisions of the two preceding sections shall apply to all persons and corporations who are justly and equitably entitled to have money erroneously paid for taxes refunded, such payment having been made within two years preceding the commencement of any action, suit, or proceedings for its recovery, and no action or suit or other procedure can be maintained unless brought or commenced within two years after such payment is made.' (Emphasis supplied.)

Counsel for appellant argue that the trial court erred in sustaining appellee's demurrer to the so-called plea in abatement, which it is asserted set up that the appellee was not justly and equitably entitled to have the money refunded for the reason that appellee had added to the price of gasoline sold his customers the so-called license tax levied by the ordinances under attack.

We think the trial court correctly sustained demurrer to this so-called plea in abatement. Irrespective of the underscored provision of § 334, Title 51, supra, recovery could not be had under the common counts unless the plaintiff was equitably entitled to have the money refunded to him, for a recovery under common count for money had and received can be had only when it is shown that the defendant was in possession of money belonging in equity and good conscience to the plaintiff, which he is entitled to receive. Chandler v. Wilder, 215 Ala. 209, 110 So. 306. So that under the plea of the general issue, plaintiff could not recover in this form of action unless he was in equity and good conscience entitled to the refund.

The so-called license tax levied by the ordinances here under attack, as before pointed out, was levied against the operator of the filling or service station. The fact that the operator of the service station passed the tax on to the customer would not in and of itself deprive him of the right to recover, in an action for money had and received, payments made by him under a void ordinance. Such is the effect of our holdings in City of Prichard v. Richardson, supra, and in the opinion rendered on the former appeal in this case, to which we adhere. Hawkins v. City of Prichard, supra.

Appellant insists that the trial court erred to a reversal in sustaining the motion of appellee to strike appellant's pleas of set-off and recoupment. This suit was filed on July 21, 1944. Service was had on defendant on the next day. The cause came on for trial on June 5, 1946. Judgment was rendered the following day and motion for new trial was denied September 12, 1946. We reversed the judgment of the trial court and remanded the cause on May 29, 1947. After remandment and on November 4, 1947, these pleas of set-off and recoupment were filed by defendant below, appellant here. On November 6, 1947, plaintiff, appellee here, filed his motion to strike such pleas on the ground, among others, that they were filed too late. Plaintiff's motion to strike was sustained on November 6, 1947. In briefs filed here on behalf of both parties to this appeal, reference is made to a trial of this cause between November 6, 1947, and November 10, 1947, but we find no entry of record disclosing that such a trial was had. On November 10, 1947, evidently after a second trial, defendant refiled its pleas of set-off and recoupment. On December 4, 1948, plaintiff filed his motion to strike the pleas of set-off and recoupment as refiled. The motion to strike was granted on January 4, 1949.

The filing of the pleas of set-off and recoupment at this late stage of the case was a matter addressed to the sound judicial discretion of the court. In view of the long delay in filing the pleas, we...