Town of Ligonier v. Ackerman

• Decision Date: 01 May 1874
• Citation: 46 Ind. 552
• Parties: THE TOWN OF LIGONIER v. ACKERMAN.
• Court: Indiana Supreme Court

46 Ind. 552

THE TOWN OF LIGONIER v. ACKERMAN.

SUPREME COURT OF INDIANA

MAY TERM, 1874

May 1, 1874

TOWN.—License to Sell Intoxicating Liquor.—Where a town in good faith adopted an ordinance requiring a license to be obtained for the retail of intoxicating liquors, in pursuance of the amendatory act of the legislature, of the nth of March, 1867 (Acts 1867, p. 220), a person who applied for license, and received and paid for the same without objection, cannot recover back the money thus paid, although the act of the legislature, and the ordinances of the town thereunder, are invalid.

PAYMENT.—Illegal Demand.—If an individual pays an illegal demand made against him, without legal compulsion, with a full knowledge of the facts and without fraud or imposition, he cannot reclaim it.

SAME.—A mere apprehension of legal proceedings is not sufficient to make 3 payment compulsory; and where there is a threatened prosecution, the payment must be made under protest, in order to entitle the party to reclaim it.

From the Noble Circuit Court.

J. H. Baker, J. A. S. Mitchell, and J. E. Knisely, for appellant.

W. A. Woods and R. M. Johnson, for appellee.

BUSKIRK, J.—On the 11th day of March, 1867, an amendatory act was passed by the legislature, and approved by the Governor of the State of Indiana, which provided, among other things, that incorporated towns should have the power to license, regulate, and restrain the sale of spirituous liquors. The act also provided, that, in cases where such licenses were granted, a sum not exceeding double the amount required by the statute of the State might be required to be paid into the treasury of the corporation by the person so licensed, before receiving such license.

As the statute of the State required a license of fifty dollars to be paid into the county treasury, it is evident by this act it was intended to delegate to incorporated towns the right to require a license fee of not to exceed one hundred dollars from each person who should engage in the business of retailing intoxicating liquors within the corporate limits of such town.

The appellant, a duly incorporated town, proceeded by its board of trustees to pass an ordinance, which was to be in force from and after the 1st day of July, 1867, by which she undertook to "regulate and restrain" the sale of intoxicating liquor by forbidding its sale by any person within her corporate limits in a less quantity than a quart, unless they should first give notice, by posting written notices, ten days, in five public places, of their intention to make application for license. The ordinance further provided, that upon satisfactory proof of notice, and upon the applicant's giving satisfactory security to the town that he would keep an orderly and peaceable house, the board of trustees should grant him a license. Before the license was delivered to the applicant, it was required that he should pay to the treasurer of the town the sum of one hundred dollars as a license fee. It was further provided, that if any person, not being licensed according to the provisions of the ordinance, should sell any intoxicating liquors in a less quantity than a quart at a time, or should sell any intoxicating liquors to be drank on the premises, such persons should, upon conviction, be fined in the sum of one hundred dollars, and that all fines and penalties for the violation of the ordinance should be recovered as provided by law in such cases.

A second ordinance was passed by the appellant's board of trustees, which was to take effect on and after the 15th day of October, 1867. The second ordinance was substantially the same as the first, except that it required twenty days' publication of notice, and provided that a license might be granted for any period not less than six months, nor more than one year. In all other respects, the two ordinances are almost identical.

On the 27th day of November, 1868, a third ordinance was passed, not in any manner affecting the previous ordinances, further than that all licenses should thereafter expire on the first days of January and July of each year.

The foregoing is a brief summary of all the legislation on the subject pertinent to the case, as it remained apparently in force from the date of the passage of the amendatory act first referred to until the November term, 1870, of this court, when it was held, that by reason of the failure to set out the whole of the amended section in the act as amended, the whole amendment was void, and as a consequence all ordinances which were passed under it were void also. Town of Martinsville v. Frieze, 33 Ind. 507.

This decision was promulgated at the November term, 1870, and two and a half years after that time, the appellee, by his attorneys, addressed a communication to the appellant's board of trustees, advising them that several years prior to that time he had paid into the treasury of the town of Ligonier three hundred and four dollars and seventeen cents for licenses to sell intoxicating liquors, and further informing them that he had paid the same under protest, and to avoid arrest, fine, and imprisonment; and after communicating to the board of trustees that the ordinances under which the money was paid were null and void, he demanded that the money should be paid back with interest. This demand having been made on the 28th, and the town failing to respond satisfactorily, this suit was instituted on the 29th day of April, 1873, for the purpose of recovering the money alleged to have been paid, with interest.

The complaint is in two paragraphs, both of which are substantially the same. The one seems to be based on the ordinance which went into force July 1st, 1867, and the other upon the ordinance of October 15th, 1867.

It is averred in the complaint that at the times above named the ordinances, the substance of which has been heretofore given, were passed by the appellant's board of trustees; that at the time of the passage of the ordinances, the appellee was engaged in the sale of intoxicating liquors in a less quantity than a quart, in the town of Ligonier, holding a license from the Board of Commissioners of Noble County; that he was desirous of continuing his business, and that for the purpose of avoiding the penalties and forfeitures provided in said ordinances, and to save himself from arrest and imprisonment he was compelled to pay, and did pay to the treasurer of said town, large sums of money for licenses. It then proceeds to charge that the ordinances were adopted and enforced by the appellant, and that the money was extorted from the appellee, without authority of law; that the appellant's officers unlawfully and wrongfully exacted and extorted said moneys from the appellee, and forced and compelled him to pay the same, to avoid arrest, fine, and imprisonment, and refused to permit him to pursue his business of dealing in intoxicating liquors until he paid said money; that he paid the same by compulsion of said authorities, and to avoid arrest, fine, and imprisonment at the hands of appellants, and that he had demanded repayment of the money.

No question was made as to the sufficiency of the complaint.

The appellant answered in three paragraphs. The substance of the first paragraph, after admitting the passage and publication of the ordinance, is,

1. A denial that the appellee paid at the time and in the manner averred.

2. That the appellant acted in good faith, and under competent advice, in the adoption of the ordinance.

3. That after the ordinances were adopted, the appellee, of his own volition, from time to time presented his application for license in accordance with the regulations prescribed in the ordinance, and that such applications were at his request granted.

4. That the licenses were issued to him at his own request, and were received by him, and the price stipulated therefor paid by him without any objection or protest, and without any notice that he intended to question the appellant's right to pass the said ordinance and receive the said moneys for such licenses.

5. That at the time of making the applications, and granting the licenses, both parties acted under the belief that the ordinance was legally passed.

6. A denial on the part of the appellant that she extorted any money from the appellee, or that he paid the money to avoid arrest, fine, and imprisonment.

The second paragraph contains substantially the same averments, viz., the good faith of the appellant in the passage and publication of the ordinance; that the appellee applied for licenses from time to time; that at his request licenses were issued to him; that he paid for the same without any objection whatever, and under the belief that the town had the legal right and authority to pass the ordinance and receive the money for licenses; that the money was paid without notice or protest, etc., with the following additional averments: first, that the appellant used no threats, coercion, or compulsion of any kind whatever, to induce the appellee to apply for and pay for such licenses, other than the passage and publication of the ordinance; and, lastly, that the money received for licenses has been expended for the common benefit of the citizens of the town, including the appellee.

The third paragraph avers the good faith of the town, and that the appellee, with a large number of other persons, were at the time of the adoption of the ordinance, and have been ever since, engaged, at various public places within the corporate limits of said town, in the business of keeping drinking saloons and tippling houses, their chief business being the sale of intoxicating liquors to be drank as a beverage on their premises; that as a result of their business, which afforded large gains to the persons engaged in it, the appellant was compelled, at great expense, to employ a marshal and policemen to preserve the peace and quiet of the town, and protect the persons and property of her citizens from the...