Custin v. City of Viroqua

• Decision Date: 23 November 1886
• Citation: 30 N.W. 515,67 Wis. 314
• Parties: CUSTIN v. CITY OF VIROQUA.
• Court: Wisconsin Supreme Court

67 Wis. 314

30 N.W. 515

CUSTIN

v.CITY OF VIROQUA.

Supreme Court of Wisconsin.

November 23, 1886.

Appeal from circuit court, Vernon county.

Butt & Graves, for appellant, Custin.

O. B. Wyman, for respondent, City of Viroqua.

TAYLOR, J.

This action is brought to recover of the respondent city $300, which it is alleged was illegally and unlawfully received by the former village of Viroqua for granting a license to the said appellant to sell intoxicating liquors in said village. The complaint sets out facts showing that the present city is legally liable for all debts and demands against the former village, and then proceeds to set forth his claim against the village as follows: “That, heretofore, to-wit, on or about the twelfth day of May, 1884, this plaintiff, who was then a resident of said village, made application in writing to the village board of trustees of said village of Viroqua for license to sell, in quantities less than one gallon, strong, spirituous, malt, ardent, or intoxicating liquors, to be drank on the premises, and filed said application with said village board; that said plaintiff was at that time ready and willing to pay for such license into the village treasury of said village any lawful sum which the said board might determine to charge therefor; that at the next regular meeting of the said village board, held on the thirteenth day of May, 1884, the said village board resolved by vote to grant the application of this plaintiff to sell liquors in the quantity and in the manner aforesaid, and to issue license therefor; that under the law relating to the sale of intoxicating liquors the said village board of said village could not legally charge this plaintiff for such license any greater sum than two hundred dollars, but that said board, at their said meeting last aforesaid, without any authority of law therefor, passed a resolution, by the terms of which it was resolved that the price for license to sell, in quantities less than one gallon, strong, spirituous, malt, ardent, or intoxicating liquors, to be drank on the premises, should be $500; that afterwards this plaintiff filed with the village clerk of said village of Viroqua a bond according to all the conditions of section 1549, Rev. St. Wis., which bond was approved by said village board, and did, on the twenty-second day of May, 1884, pay to the village treasurer of said village the sum of $500; that said sum was unlawfully, illegally, and wrongfully exacted of this plaintiff by said village treasurer in pursuance of said unlawful and unauthorized resolution of the said village board to charge the sum of $500 for said license, and that the president and clerk of said village refused to issue to plaintiff any license to sell liquor, in the manner and quantity aforesaid, until he first produced to said clerk a receipt from said treasurer showing the payment of said sum of $500; and that in order to obtain such receipt to obtain license to sell liquor and pursue the calling and business which said village board had by its resolution granted him the right to pursue, and which he had the lawful right to follow upon payment of no greater sum than $200, plaintiff was compelled to and did pay said sum of $500; and that plaintiff was forced to pay said sum solely by reason of said unlawful and illegal resolution of said village board; and that the sum of $300 of said $500 was exacted of plaintiff in willful violation of law, and without the consent of plaintiff, and was only paid by plaintiff to enable him to pursue his said business, and earn a livelihood for himself; that said sum of $500 was so received by said treasurer by virtue of his office, and was converted by the said village to its own use, and that no part thereof has ever been repaid to plaintiff; that, upon such payment as aforesaid, the said village, by its proper officers, issued to plaintiff a license to sell liquor in the quantity and manner aforesaid, within said village, and that plaintiff pursued said business until the expiration of the term of office of said village board.”

To this complaint the respondent demurred, on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and afterwards judgment was entered in favor of the defendant for the costs of the action; and from such judgment, and the order sustaining the demurrer, the plaintiff appeals to this court.

The learned counsel for the appellant claims that the demurrer should have been overruled for the reason that, at the time he paid the $500 to the village of Viroqua for a license to sell intoxicating liquors in said village, the village had no authority to demand or receive from him a greater sum than $200 for such license; that the resolution of said board fixing the sum of $500 as the price of such license was illegal and void, and that consequently the exaction of the sum of $500 was unlawfully, wrongfully, and illegally exacted; and that the excess over $200 paid by him was unlawfully and illegally received by the said village, and that he ought to be permitted to recover the same from the village as money had and received for his use. On the part of the respondent it is contended (1) that, under the laws of the state in force at the time the license was asked for and granted to the plaintiff by the village board, the village board had the lawful right to fix the price of such license at the sum of $500; and (2) if the village had not the legal right to fix the price of the license at $500, yet, having fixed it at that sum in good faith, believing they had such right under the existing law, and the plaintiff having paid the money voluntarily under such claim of right on the part of the village authorities, he cannot now recover it back, although the village authorities were wrong in their construction of the law, and in fact had no lawful power to demand more than the sum of $200 as the price of such license.

The act in force regulating the granting such license at the time this license was granted to plaintiff, viz., in May, 1884, was chapter 322, Laws 1882. Section 10 of said chapter reads as follows: “Section 1548 of chapter 66 of the Revised Statutes, entitled ‘Of excise, and the sale of intoxicating liquors,’ is hereby amended by striking out the words, ‘twenty-five nor more than one hundred and fifty dollars,’ where they occur in the tenth line of said section, and inserting in lieu thereof the words, ‘seventy-five nor more than two hundred dollars,’ and by striking out the words, ‘ten nor more than forty dollars,’ where they occur in the twelfth line of said section, and inserting in lieu thereof the words, ‘twenty-five nor...