Magwire v. Village of Springfield

• Decision Date: 07 January 1941
• Parties: F. A. MAGWIRE v. VILLAGE OF SPRINGFIELD
• Court: Vermont Supreme Court

17 A.2d 260

111 Vt. 414

F. A. MAGWIRE v. VILLAGE OF SPRINGFIELD

Supreme Court of Vermont

January 7, 1941

November Term, 1940.

Taxation of "Pin Ball Machines."---1. Statutory Repeal by Inconsistency.---2. Statutory Repeal by Implication.---3. Springfield Village Charter (No. 269 of Acts of 1919) Allows Restraint of Gaming.---4. Power to Restrain is Power to License but not Suppress.---5. Question of Public Good under Village Ordinance and Sec. 8, Part II of No. 38 of Acts of 1937.---6. No. 269 of Acts of 1919 Repealed by Part II of No 38 of Acts of 1937.---7. Ordinance Under Repealed Charter Provision Void.---8. Inconsistent License Laws can not Stand Together.---9. Payment of License Fees under Protest.

1. A statute does not repeal a former act on the same subject in the absence of express words to that effect unless there is such inconsistency that they can not stand together or the later act is evidently intended to supersede the earlier in respect to the matter in hand and to comprise in itself a sole and complete system of legislation on that subject.

2. A statute may be repealed by implication by another act, (1) when the acts are so repugnant that they can not stand together, or (2) when the later act covers the whole subject of the earlier and plainly shows that it was enacted as a substitute therefor.

3. No 269 of the Acts of 1919 (amendment to the Charter of Springfield Village) authorizes the Village of Springfield to enact ordinances relating to the restraint of all descriptions of gaming, relating to the destruction of all instruments and devices used for that purpose and to make regulations relating to the suspension of the same and is so broad as to include "pinball machines," so-called.

4. Authority to make regulations relating to the restraint of an action or business gives a power not to supress but to license the continued existence of the business by placing it within bounds.

5. Paragraph No. 6 of Section 54 of the By-laws of Springfield Village if authorized by No. 269 of the Acts of 1919 and valid would require a person operating a pinball machine therein to have the question of public good passed on by the Trustees of the Village as well as the commissioner of taxes pursuant to Section 8, Part II, of No 38 of the Acts of 1937.

6. No 269 of the Acts of 1919 (amendment to Charter of the Village of Springfield) was repealed by Part II of No. 38 of the Acts of 1937 insofar as it conferred upon the village any authority concerning licensing so-called "pinball machines" within the limits of Springfield Village.

7. An ordinance attempting to license "pinball machines" (By-law No. 54 of the Village of Springfield) purporting to be enacted pursuant to a charter provision (No. 269 of the Acts of 1919) found to be repealed by implication is enacted without authority and is void.

8. Although various license fees to different governmental units may be required to engage in a certain business, if the licensing laws are so inconsistent that they can not stand together they can not both be in force at the same time.

9. A person threatened with prosecution for failure to pay license fees who, under protest, pays the fees to avoid prosecution and to enable the use of a State license, does not make such a voluntary payment thereof as to preclude an action to recover the same.

ACTION IN CONTRACT to recover license fees on "pin ball machines" paid by plaintiff to defendant under protest. The defendant demurred to the declaration and demurrer was sustained by the Windsor Municipal Court, Glenn C. Howland, Judge. Cause was passed to the Supreme Court on plaintiff's exceptions.

Judgment sustaining the demurrer reversed and cause remanded.

Barber & Barber for the plaintiff.

Herbert H. Blanchard and P. D. Ainsworth for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

STURTEVANT

In this action the plaintiff, F. A. Magwire, seeks to recover from the defendant, the incorporated village of Springfield the sum of three hundred dollars which he claims to have paid under protest as alleged license fees to enable him to continue the operation of three so-called pinball machines at his store in the defendant village. The case is here upon the plaintiff's exceptions to the action of the court in sustaining the defendant's demurrer to his complaint.

The material facts set forth in the declaration and admitted by the demurrer are as follows:

The defendant is a municipal corporation, incorporated by No. 343 of the Acts of 1904. The plaintiff is a resident in said village and owns and operates a business there, namely, Magwire's Pharmacy.

The plaintiff at all times here material permitted to be kept in his said pharmacy three so-called pinball machines which were duly licensed by the commissioner of taxes for the State of Vermont and each machine location was licensed and fees paid, all pursuant to Part II of No. 38 of the Acts of 1937.

On April 9, 1940, at a meeting of the voters of said Springfield an ordinance designated as section 54 of the by-laws of that village was enacted. The parts of this here material are as follows:

"3rd. No person shall keep, or allow to be operated or played in any place owned or conducted by him which is frequented by the public, a so-called slot or pinball machine or other similar device, as defined by Sec. 3 of Part II of No. 38 of the Acts of 1937, unless such person has been licensed by the Village as hereafter provided, and no license shall be issued for the installation of such machine, apparatus or device in Springfield Village within three hundred feet of a school building by the route most generally traveled by the pupils of such school.

"4th. An annual license fee for such person of Five Hundred Dollars for each such machine so kept in such place shall be paid to the Village by each such person for the right to maintain such machines on the premises.

"5th. Applications for such licenses shall be made to the Trustees of the Village, in writing, signed by the applicant, such writing to contain the name and address of the applicant, a description of the location of such place where the machine or devices are to be kept, a description of the machine to be kept, and the number of such machines. The amount of money required by this bylaw for such license shall be deposited with such application, all at the office of the Village Clerk. Such licenses may be transferred from one such machine, apparatus or device to another having the same owner, provided, however, that notice of such transfer shall be sent to the Village Trustees upon blanks prepared and furnished by them, giving the descriptions of the machine, apparatus or device to which the license is to be transferred and such other information as the Village Trustees may require.

"6th. Upon approval of such application by the Trustees, the Clerk shall issue license thereupon, such license to contain the name and address of the licensee, description and number of machines licensed, location of the premises, and shall be in force until April 30th after the date of application. Any application may be rejected if the Trustees find that its issuance will not conform to the Public good.

"7th. No license shall be issued or remain in force in case the applicant fails to comply with all State and Federal laws affecting this same subject matter.

"8th. This by-law shall take effect on May 1st next.

"9th. Any person violating any of the provisions of this by-law shall be fined not more than one hundred dollars, and upon conviction hereunder shall forfeit his license."

Article 22 of the warning for this meeting was in substance to see if the voters would authorize an annual license fee of one hundred dollars for each pinball machine. At a special village meeting held April 23, 1940, the words "five hundred dollars" in the fourth paragraph of said ordinance as above stated were voted to be changed to "one hundred dollars."

On, to wit, the first day of May, 1940, the plaintiff applied for the licenses required by said ordinance and paid the fees in the total sum of three hundred dollars to the defendant as thereby required. The trustees, prosecuting officers and agents of the defendant threatened to enforce said ordinance and the penalties thereunder unless the plaintiff paid the license fees as therein required and abided thereby. Said payment and application for licenses were made by the plaintiff under protest and with notice that he should forthwith institute legal proceedings to recover same. The plaintiff accompanied his application and payment with a letter in words and figures as follows:

"To the Incorporated Village of Springfield

Springfield

Vermont

I, F. A. Magwire, of Springfield, understand that unless I procure a license and pay the $ 100 fee required by Section 54 of the By-laws of the Village of Springfield, as finally adopted by the voters on April 23rd, 1940, that I will subject myself to a criminal prosecution plus endangering any future license under the ordinance.

In order to avoid this situation, I herewith hand you $ 300 and apply for a license which I am obliged to do because of the erroneous, improper, invalid and unconstitutional pinball ordinance, so-called, being Section 54 of the By-laws of Springfield Village. This is notice to you that this payment and application is under my strenuous protest and that I shall forthwith institute suit to recover same. Very truly yours, F. A. Magwire."

The plaintiff in his declaration also alleged and now contends that the ordinance, section 54 of the by-laws of the village of Springfield, is invalid and void for the following reasons:

1. The ordinance was not enacted pursuant...