Spalding v. City of Lebanon

• Decision Date: 21 November 1913
• Citation: 156 Ky. 37,160 S.W. 751
• Parties: SPALDING et al. v. CITY OF LEBANON [1]
• Court: Kentucky Court of Appeals

160 S.W. 751

156 Ky. 37

SPALDING et al. v. CITY OF LEBANON ^[1]

Court of Appeals of Kentucky.

November 21, 1913

Appeal from Circuit Court, Marion County.

Action by Ben Spalding and others against the City of Lebanon. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

William W. Spalding, of Lebanon, for appellant.

Chas C. Boldrick and H. W. Rives, both of Lebanon, for appellee.

MILLER J.

Prior to April 5, 1910, the appellants, who were druggists in the city of Lebanon, a city of the fourth class, were engaged in selling "soft" drinks as a part of their business. On the date named, at the solicitation of a number of persons who were then engaged in that business, or who desired to engage in it, in Lebanon, the board of councilmen adopted an ordinance providing for licensing the sale of soft drinks in the city of Lebanon, fixing the license fee at $200 per annum, payable quarterly. The petition alleges that the appellants joined in the petition for the passage of the ordinance, but the evidence fails to sustain the allegation. Appellants obtained the required license, and continued to do business thereunder for 18 months, during which period they paid license fees aggregating $300. On September 12, 1912 appellants brought this action against the city of Lebanon to recover said $300, upon the ground that it had been paid through mistake, and collected without authority of law. The want of authority upon the part of the city to collect the license fee appeared, for the first time, shortly before the action was brought, when appellants discovered that the ordinance of April 6, 1910, was void, because the yeas and nays of the vote upon its adoption had not been recorded in the journal of the proceedings of the board of council.

Section 3489 of the Kentucky Statutes, which is a part of the charter of cities of the fourth class, reads as follows: "No ordinance for the improvement of streets or sidewalks, or for the assessment of any tax, or for the establishment of any license, shall be valid unless the yeas and nays thereon be recorded in the journal of proceedings. Any member of the board of council may call the yeas and nays on any vote."

The journal of the council contains only the ordinance spread in full upon its records; it contains no record of any vote or any action or proceeding taken thereon, although it was shown by parol evidence, over the appellants' objection, that the ordinance passed by a unanimous vote, and was signed by the mayor and regularly published in a newspaper, as required by law. It is conceded, however, that no record was ever made of the passage of the ordinance, nor were the yeas and nays of any vote thereon recorded in the journal of the proceedings as required by the statute. The petition proceeds upon the theory that the plaintiffs believed the ordinance had been validly and regularly enacted, and that the defendant had the right to exact from plaintiffs the $300 which they paid as a license fee, and that they paid said sum in ignorance of the fact that the ordinance had never been legally passed, and under the erroneous belief that the ordinance was valid. The answer alleges that the ordinance was properly passed, but that the clerk of the board of council, by oversight and clerical misprision, omitted to enter upon the journal of the board the yea and nay vote that had really been taken, and that, in fact, every councilman had voted for the passage of the ordinance. It further alleges that the plaintiffs received the benefits and protection to their business by virtue of the penalties prescribed in said ordinance; and having received the full consideration for the license fees paid by them, and having made those payments freely and voluntarily, without any duress or force upon the part of the city, they are estopped from now demanding their repayment. The circuit court took the defendant's view of the case, and plaintiffs appeal.

Section 7 of the ordinance provided a fine of $5 for any person who should violate its provisions by selling soft drinks without the license; and, on one occasion, the plaintiffs having failed to pay the quarterly installment of their license when due, one of them was arrested, and, upon his pleading guilty a fine of $5 was assessed against him and paid.

The first error assigned by the appellants is the ruling of the court in admitting parol testimony to prove the passage of the ordinance. It is a general rule that the official actions of a city council can be shown only by its records, whenever evidence of those acts is demanded in another tribunal. If it were permitted to enlarge or restrict the record evidence by parol testimony, the entries in the journal would be uncertain and unreliable, and would fail to afford any evidence that could he depended upon to show the actual proceedings of a city council at any of its meetings. In considering the question whether a municipality can supply omissions from its records by parol evidence, this court used the following language in Dunn v. City of Cadiz, 140 Ky. 217, 130 S.W. 1089: "Appellee's charter provides for the appointment of a city clerk for a term of two years. Ky. St. § 3619. It is made the duty of the city clerk to keep a true, full record of all the proceedings of the city council. Ky. St. § 3627. The Legislature, having provided appellee with a clerk and having made it his duty to keep a true record of the proceedings of the general council, we conclude that the city of Cadiz can speak only by its record. Any other rule would be to substitute for the record the uncertain memory of the witnesses." City of Covington v. Ludlow, 1 Metc. 295; L., St. L. & T. R. R. Co. v. Newsome, 13 Ky. Law Rep. 174; Barfield v. Gleason, 111 Ky. 491, 63 S.W. 964, 23 Ky. Law Rep. 128; Town of Mt. Pleasant v. Eversole, 96 S.W. 478, 29 Ky. Law Rep. 830--support the rule that a municipal council can speak only by its records. In the Eversole Case, above cited, the court said: "A city council can only speak by its records. When its records are read and signed it is the only evidence of the action taken by the council at that time." This doctrine prevails generally. See McQuillin's Municipal Ordinances, § 129. The circuit judge erred in admitting parol evidence to show the passage of the ordinance; and, it not having been adopted as required by the statute, it was invalid.

Were these payments made under a mistake of law and fact, and under circumstances which made them involuntary?

The rule in most jurisdictions is that money paid under a mistake of fact can be recovered, but money paid under a mistake of law cannot be recovered. But to this general rule the decisions of this court form an exception, since it has long been settled in this state that money paid under a mistake of law may be recovered. And since one is much more inclined to make a...