Emery v. City of Lowell

Soule, J.

The plaintiffs paid the money which they sue for with a full knowledge of all the facts in the case. They recognize the well-established principle that money voluntarily paid *140 with such knowledge cannot be recovered. They contend that the payment was not voluntary. Their argument is, that by the vote fixing the license fee at two hundred dollars, the vote to grant them a license, and their tender of the fee and demand for a license, a contract was made between them and the city which entitled them to a license at once; that there was a duty on the part of the city to license them; that the license certificate dated May 9 became their property ; and that the refusal of the city to deliver the license certificate except on payment of one thousand dollars made the payment of that sum for the license a payment on compulsion.

We are of opinion, however, that the action cannot be maintained. The statute authorizing the licensing of the sale of intoxicating liquors is a police regulation intended to regulate trade, prevent injurious practices, and promote the good order of the community. The license when granted is not a contract between the licensee and the city or town by the officers of which it is granted. Municipal officers in acting under the statute are merely exercising the police authority which the statute gives, as public officers. Calder v. Kurby, 5 Gray, 597. The statute expressly says that nothing in it shall be construed to compel city or town officers to grant licenses. St. 1875, c. 99, § 5. The whole subject of the granting of licenses, of determining whether a particular individual should or should not be licensed, and of fixing the fees for the several classes, is within the control of the municipal officers, until a license has been issued. Undoubtedly all licenses of a particular class for any year must be issued at one rate of license fee, but that fee may be fixed at any time before licenses are issued. The plaintiffs, therefore, had not acquired a right, as against the defendant, to a license for the fee of two hundred dollars, before the vote was passed fixing the fee at one thousand dollars.

Even if this were not so, the payment was a voluntary one. We do not regard it as changing the character of a payment from voluntary to involuntary or compulsory, that it is important to the party paying to get what he gets by the payment, in other words, that there should be an urgent need on his part. It is ordinarily and almost necessarily true that one pays what he regards as extravagant, only for what seems to him an important *141 result, and submits to the demand for what he regards as an exorbitant or illegal fee, only because there is an urgent need for what the payment will produce. It would be unsafe to leave the question of recovering money paid to depend on the urgency of the need of the party when paying it. The plaintiffs wished a license. They were at liberty to take it or not, as they saw fit. They paid the fee demanded, knowing all the facts in the case. A refusal to pay would have resulted merely in their not being licensed. They must be held to have paid voluntarily, and not under coercion. The case is not analogous to an action to recover the amount of an illegal tax paid to a collector armed with authority to collect it by a distress. It is not stronger for the plaintiffs than the case of an action to recover the amount of an illegal tax, paid under protest, within the time prescribed by the town, so that the payer obtained a discount for early payment; and such action cannot be maintained. Lee v. Temple-ton, 13 Gray, 476. The case at bar seems to be covered by the decision in Cook v. Boston, 9 Allen, 393, where it was held that money paid under protest for a wagoner’s license, with a full knowledge of all the facts, must be deemed to have been paid voluntarily, and could not be recovered back.

Judgment affirmed.