Town of Providence v. Shackelford

• Decision Date: 14 April 1899
• Citation: 106 Ky. 378,50 S.W. 542
• Parties: TOWN OF PROVIDENCE v. SHACKELFORD et al. SAME v. PRICE et al. SAME v. FORSYTHE et al. SEBREE CITY v. KLYMAN. SAME v. HAMPTON et al.
• Court: Kentucky Court of Appeals

50 S.W. 542

106 Ky. 378

TOWN OF PROVIDENCE v. SHACKELFORD et al.

SAME v. PRICE et al.

SAME v. FORSYTHE et al.

SEBREE CITY v. KLYMAN.

SAME v. HAMPTON et al. ^[1]

Court of Appeals of Kentucky.

April 14, 1899

Appeals from circuit court, Webster county.

"To be officially reported."

Actions by Shackelford & Foxwell and others against the town of Providence, and by S. Klyman and others against Sebree City to recover money paid. Judgment for plaintiffs, and defendants appeal. Reversed.

M. C. &amp G. D. Givens, John W. Lockett, and F. M. Baker, for appellants.

C.J Waddill, J. F. Gordon, and Bourland & Raybourn, for appellees.

HOBSON J.

These five cases, involving the same facts, have by agreement been heard together. In the classification of the towns and cities of the state by the legislature the towns of Providence and Sebree City fell in the sixth class. After this they were, by the judgments of the circuit court of Webster county pursuant to section 3661 of the Kentucky Statutes transferred to the fifth class. Thereupon in each of these towns a city government, consisting of a mayor, city council, etc., was organized pursuant to the statute governing cities of the fifth class. These city authorities fixed the license for selling spirituous, vinous, and malt liquors at $1,000. Appellees took out a license, and paid the city $1,000 therefor. Subsequently this court in the case of Jernigan v. City of Madisonville, 43 S.W. 448, held the statute above referred to empowering the circuit court to transfer a town from one class to another to be in violation of section 156 of the constitution. Towns of the sixth class are not authorized by statute to fix the license for selling spirituous, vinous, and malt liquors at over $500. Ky. St. § 3704. Appellees thereupon filed these suits to recover $500 of the amount each of them had paid, on the ground that it was paid through mistake, and without authority of law. The contention of the appellees is that, as the attempted transfer of the towns from the sixth to the fifth class was void, because in violation of the constitution, the towns remained in fact in the sixth class, and so had power only to charge $500 for the license; and, $1,000 having been paid on the assumption that the towns had been legally placed in the fifth class, and so had the power of fifth-class cities, the excess over $500 should be paid back to them. They invoke the rule adopted in this state that money paid in ignorance of law may be recovered where, in equity and good conscience, it ought not to be retained. We do not think this principle applies here. The appellees have got all they bargained for. They wanted the privilege of selling spirituous, vinous, and malt liquors at a certain place. This they paid for, and this they have enjoyed. It is immaterial to them whether the transfer of the towns from the sixth to the fifth class was legal or otherwise. There was, in fact, a city government of the fifth class under which they conducted their business and enjoyed all the rights they expected in taking out their license. The action of this de facto city government of the fifth class protected third parties dealing with it. Appellees could not be indicted for selling without license, and they cannot assail the regularity of the city government which they themselves, by their conduct, acquiesced in. In Dill. Mun. Corp. § 43a, the learned author says: "Where a municipal corporation is acting under color of law, and its existence is not questioned by the state, it cannot be collaterally drawn in question by private parties; and the rule is not different although the constitution may prescribe the manner of incorporation. *** Hence, in an action by such a corporation to recover penalties imposed by its ordinances, nul tiel corporation is not a good plea." In Railroad Co. v. Wilson, 33 Kan. 223, 6 P. 281, in disposing of a case something like this, the court, refusing to allow the regularity of the organization of a municipal corporation to be assailed, said: "The legality of the organization...