Tatum v. Town of Trenton , 85 Ga. 468 ( 1890 )

Simmons, Justice.

Tatum, desiring to retail spirituous liquors in the town of Trenton, and believing that the board of commissioners of said town had full power and authority to grant him a license so to do, and fix and regulate the pi’ice thereof, and being assured by said board that they had such power and authority, applied to and obtained from the board a license to retail spirituous liquors in the town of Trenton in 1883, in 1884, and in 1885, paying to said board of commissioners for the three years $650.00. In the year 1885 he was indicted and convicted for retailing spirituous liquors without a license, the trial court holding that the board of commissioners of said town of Trenton had no power or authority to grant him a license to retail spirituous liquors. He brought his case to this court, and the judgment of the trial judge was affirmed. Tatum v. State, 79 Ga. 176. He thereupon brought suit against the town of Trenton to recover the money paid by him to said town for license. Upon the trial of the case he introduced in evidence the licenses granted to him, to prove that he had paid the amount sued for; put in the indictment found against him, and the verdict of guilty, together with the sentence of the court. He testified that he applied to the commissioners of Trenton for license in good faith, believing they had the right and authority to issue said license, and paid the amount they required; that the commissioners claimed to have the right to issue said license, and he thought they did; that he sold whiskey under the license in evidence, and was not disturbed while so doing by the town authorities, but stopped selling when he was convicted. Plaintifi having closed his case, defendant moved for a nonsuit, which was granted, and Tatum excepted.

There was no error in granting the nonsuit under the facts disclosed by this record. It was ruled by this court, in the case of the First National Bank of Americus v. Mayor, etc., 68 Ga. 119, that “Three elements are essential, and must concur, to sustain an action to recover back money on the ground of the illegality of the tax : (1) the authority to levy the tax must be wholly wanting; (2) the money sued for must have been actually received by the defendant corporation ; (3) the payment of the plaintifi must have been made upon compulsion, to prevent the immediate seizure of his goods or the arrest of his person, and not voluntarily made.” Judge Cooley, in his work on Taxation (2d ed., p. 809), says : “That a tax voluntarily paid cannot be recovered back, the authorities are generally agreed. And it is immaterial in such a case that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional. The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction.” The plaintiff in this case failed to show one of the essential elements, to wit, that he had paid the license or tax under compulsion; but on the contrary, he showed by his own testimony that the payment was made voluntarily by him. This being true, under these authorities, the court was right in granting a nonsuit.

The case of Callaway v. Mayor, etc. of Milledgeville, 48 Ga. 309, relied upon by the plaintiff in error, we think has been virtually overruled in the case of The Commissioners of Thomson v. Norris, 62 Ga. 538, and in the case of McGehee & Hatcher v. Mayor, etc. of Columbus, 69 Ga. 581. Judgment affirmed.