Peterson v. Town of Guernsey

• Decision Date: 22 September 1919
• Docket Number: 921
• Citation: 183 P. 645,26 Wyo. 272
• Parties: PETERSON v. TOWN OF GUERNSEY
• Court: Wyoming Supreme Court

183 P. 645

26 Wyo. 272

PETERSON v. TOWN OF GUERNSEY

No. 921

Supreme Court of Wyoming

September 22, 1919

ERROR to District Court, Platte County; HON. WILLIAM C. MENTZER Judge.

Action by Kate F. Peterson against the incorporated town of Guernsey, Platte County, to recover the unearned portion of a license fee for the sale of intoxicating liquors. From a judgment of dismissal, plaintiff brings error.

Affirmed.

Kinkead and Henderson, for plaintiff in error.

There was no cause shown for the revocation of the license; the discretion of the board to revoke a license is limited to causes stated by statute. The courts will prevent an abuse of power (Bennett v. City, 76 N.W. 844; Peterson v City, 46 P. 657; Allan v. Drew, 44 Vt. 174). A license cannot be revoked without cause (23 Cyc. 156); the unearned license money should be refunded (Bart v. Pierce Co. (Wash.), 111 P. 582; Northrop v. Graves (Conn.), 50 Am. Dec. 264; Scott v. New Castle (Ky.), 39 Am. Dec. 479; Allman v. Okla. City, 17 A. & E. Ann. Cases, 184 (Okla.)). Plaintiff paid money for a privilege which the town has repudiated and it is bound in good conscience to return it. (Pearson v. City of Seattle (Wash.), 44 P. 884; Scott v. New Castle (Ky.), 21 L. R. A. N. S. 112; Allsman v. City Okla. (Okla.), 17 A. & E. 184; Shue v. School Dist. No. 6 (Neb.), 152 N.W. 567; Hirn v. State of Ohio, 1 Ohio St. 15; City of Marshall v. Snediker, 78 A. D 534; State v. Ritter (Wash.), 134 P. 493.) A license constitutes property (Fisher v. Cushman, 103 F. 860, 51 L. R. A. 292; Lyman v. Brewing Co. (N. Y.), 54 N.E. 577; In re. May, 5 Am. Bank Rep. 4). The licensee is entitled to recover (Scott v. New Castle, 21 L. R. A. N. S. 112; People v. Lyman, 55 N.Y.S. 76). Courts may inquire into the validity of a revocation order by collateral proceedings (Board of Com'rs v. State ex rel. Brown, 147 Ind. 476, 46 N.E. 908; Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468; Wilkins v. State, 113 Ind. 514, 16 N.E. 192; State v. Johnson, 105 Ind. 463, 5 N.E. 553; Mayor, etc., of City of Harvey v. Dean, et al., 62 Ill.App. 41). The functions of the board in granting or revoking a liquor license are ministerial (29 Cyc. 1443). The license was revoked without fault of the licensee, and the unearned portion should be refunded (Allsman v. Okla City, 16 L. R. A. N. S. 511, 95 P. 468).

Marion A. Kline and Oscar O. Natwick, for defendants in error.

The license was revoked on the ground that the holder was conducting a disorderly place (2836 C. S.). It was the duty of the board to revoke it under the statute (Bartlett v. R. R. Co., 71 N.E. 204); the order of revocation is not subject to collateral attack (San Mateo Co. v. Coburn, 63 P. 78; Riverside Co. v. Mfg. Co., 86 P. 900; Donalson v. Lawson, 25 N.E. 903; Com. v. Wall, 145 Mass. 216). A license made subject to revocation by the passage of a prohibitory law does not justify recovery of the unearned portion by the licensee (Peyton v. Hot Springs County, 53 Ark. 236; Toman v. Westfield, 70 N.J.L. 610, 57 A. 125; McGinnis v. Medway, 176 Mass. 67; Fitzgerald v. Witchard, 130 Ga. 552, and cases cited. See also Wood v. School Dist., 115 N.W. 308). The case of Allsman v. Okla. City, cited by the plaintiff in error, is not to the point. It seems needless to cite further authority in view of the provisions of Chapter 13 of the Session Laws of 1911, expressly prohibiting the refunding of money paid to a municipality for liquor license. The license money was paid voluntarily with full knowledge of the provisions of the statute above referred to.

BLYDENBURGH, JUSTICE. BEARD, C. J., and POTTER, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

The plaintiff in error, plaintiff below, brought this case in the district court of Platte county to recover the sum of $ 926.05 from the defendant incorporated town of Guernsey, as the alleged unearned portion of a license fee paid for a license granted to the plaintiff by the Board of County Commissioners of Platte county to sell intoxicating liquor at retail at a designated place within the defendant town. An amended and substituted petition was filed by the plaintiff by leave of court, and a demurrer "That said petition does not state facts sufficient to constitute a cause of action against the defendant" and "that the facts stated in the petition are not sufficient to entitle plaintiff to the relief demanded in said petition or to any relief whatsoever," having been sustained by the court and the plaintiff declining to plead further, judgment was rendered against the plaintiff and her action dismissed, and seasonable exceptions having been taken by plaintiff the case is here on error alleged in sustaining the demurrer and rendering the judgment of dismissal.

The sole question before this court is, does the amended and substituted petition state a cause of action against the defendant?

Said petition, in substance, alleges: That the defendant is an incorporated town situated in Platte county, Wyo.; that the Board of County Commissioners of Platte County, on proper application by plaintiff on June 5, 1916, licensed plaintiff to maintain and carry on the business of retail liquor dealer in a certain building in the defendant town in consideration of which license the plaintiff paid into the treasury of the defendant the sum of $ 1,000 as required by law. The license to run from Jan. 4, 1916, to Jan. 4, 1917. Said license being set out in full in the petition. That after, but not before, the issuance of the said license the plaintiff entered upon the business authorized by the license and in strict conformity therewith, and with the law applicable thereto, and continued to operate thereunder until the said permit was revoked by the said Board of County Commissioners, but not after the license was revoked. "That during all the time plaintiff operated under said permit she neither suffered nor permitted any disorder, disturbance of the public peace, drunkenness or unlawful games or practices or any violation of any law whatsoever in or about the house or place for which said license was granted aforesaid, but, on the other hand, plaintiff states that at all times subsequent to the granting of said permit aforesaid, plaintiff conducted said place in an orderly and lawful manner and strictly as required by law; and that subsequent to the granting of said permit she gave to said Board of County Commissioners no cause or reason or lawful excuse for the cancellation or revocation of said permit. Nor did any of her agents or employees give said Board any lawful reason or excuse or cause for the revocation of said permit, but on the other hand performed her duties in and about said place in strict accordance with law." That on Feb. 2, 1916, said Board of County Commissioners, no fault, cause or reason having been furnished therefor by the plaintiff or her agents, revoked the license and notified plaintiff that said revocation would become effective at 12 o'clock, midnight of Feb. 5, 1916, at which time plaintiff discontinued said business and ever since has ceased to operate under said license; that no previous notice was given plaintiff of the intention of the board to revoke said license or any opportunity to be heard thereon, and no objections or complaints as to plaintiff's conduct of the place were filed with the board or made against the plaintiff; that the board revoked said license "without any pretense of lawful reason or ground therefor existing or occurring at any time since the issuance of said permit;" that plaintiff at all times conducted a quiet and orderly place in strict compliance with law in every particular. That by reason of the action of the Board of County Commissioners plaintiff was denied the right to carry on said business subsequent to Feb. 5, 1916, "and without any fault on her part or any of her agents 305/365 of the consideration for said sum of $ 1,000 paid by plaintiff to the Treasurer of the Town of Guernsey for said license, to-wit: The sum of $ 926.05, has wholly failed and plaintiff received nothing whatever therefor; that said defendant is now wrongfully withholding from plaintiff said sum of $ 926.05 and refuses to return the same to plaintiff; and that said town of Guernsey aforesaid is therefore indebted to plaintiff in the sum of $ 926.05 with interest thereon from the sixth day of February, 1916." The petition then alleges that the $ 1,000 is still in the town treasury, having been ordered by the town council to be kept in a special fund to await the result of this action, and that plaintiff presented her verified claim as required by the statute to the town council for allowance and that said town council on November 9, 1916, rejected and refused to allow said claim.

The demurrer admits these facts as true for the purposes of this case, and the question to be decided is: Can one who has paid the required license fee into a city or town treasury for a liquor license granted by the Board of County Commissioners of the county, which has ceased to be effective through no fault of the person licensed, and through no action or fault of the city or town or its officers, recover an amount of the money paid proportional to the time during which the license was inoperative?

Under the laws of this state relating to the issuance of liquor licenses in force at the times mentioned in the petition in this case, the boards of the county commissioners of the several counties were the officers vested with the power to grant licenses to sell intoxicating liquors, but when granted the license fee or tax of $ 1,000 provided by statute for the yearly license was to be paid into the treasury of the city or town within which the place mentioned in the license was situated, and additional power was...