City of Fitzgerald v. Witchard

Atkinson, J. On the argument the point was made that even if, under the ruling in Mellon v. Moultrie, 114 Ga. 462 (40 S. E. 302), the licensee, after paying for the license, could not compel a return of the money upon revocation of the license by the municipal authorities, yet, inasmuch as the municipal authorities are ■ willing and desire to refund the money, and the plaintiffs have made their complaint in a court of equity, the case should be controlled by principles of equity, and the municipal authorities, in equity and good conscience, ought to refund the money, under the facts of this particular case, and that they should not be enjoined when they undertake voluntarily to do so. A careful examination of the record fails to disclose wherein equity and good conscience -require the city authorities to refund the money. The license was granted, and the municipal authorities took no voluntary action terminating the same. Nor does it appear that during the existence of the license the city authorities undertook voluntarily to refund any part of the money. The term of the license thus com [555] meuced and ended without anjr offer or resolution by the mayor and aldermen voluntarily to refund the money. On its face the petition did not show why the licensees quit business. • But if it be assumed that the act of August 10, 1906, was the cause (as argued by counsel), the agency whicli prevented the licensees from enjoying the privileges wa's the State law, separate and distinct from the municipal government. There is no more reason in equity and good conscience why the municipal authorities' should be allowed to refund the money in this instance than there would have been had the licensee been prevented from enjoying the privileges of his license under some other, independent agency, over which the municipal government had no power or control. After the term of the license'had been completed, without the municipal authorities attempting in the exercise of a discretion to refund any part of the money, the transaction was entirely closed. The money paid for the license passed into the ownership of the city, beyond any means of redemption, and the succeeding municipal authorities had no discretion or power to dispose of public funds in the manner attempted. Judgment affirmed. All the Justices concur.