Brush v. City of Helena

MR. JUSTICE SANNER delivered the opinion of the court. Action to recover $1,700 paid to the city of Helena under the circumstances hereinafter stated. Plaintiff had a verdict for $1,175 and judgment accordingly. From that judgment the city appeals, and it also asserts an appeal from an order entered in the district court denying it a new trial. The asserted appeal from the order is without validity, because not taken in time. The appeal actually here is from the judgment only; and, as the fundamental and, in our opinion, decisive proposition thus presented is whether there is any evidence to support the verdict and judgment, we deem it unnecessary to consider the many other questions which the industry of counsel has submitted. The case made by the plaintiff, respondent here, is this: In July, 1908, he desired to go into business at Helena selling popcorn, peanuts, chewing-gum, and other trifles and bought a suitable wagon for that purpose; he wished to locate himself and his wagon upon the public street at the American National [258] Bank corner of Sixth and Main; he applied to the city treasurer for a license, was told there was none, to go ahead; he started at the location he had selected, but after twenty days was stopped by the chief of police; he then made application in writing to the city council “for a license or the privilege,” which application was presented and refused; he then went to Mayor Edwards, who promised to see what could be done; two weeks later he was told by the chief of police that an arrangement had been made to let him operate on the street, and was directed to report next day at the office of the chief; he reported, and the chief said “what the tax would be,” to-wit, $100 per quarter, the desired location being designated; he then accompanied the chief to the police court, where the chief told the police judge, “This man pays $100”; he made a check payable to the police judge for $100 and thereafter quarterly made similar checks, except that after the first four the checks were made to the chief of police,- until December, 1912, when the quarterly amount paid was $50, until he quit in October, 1913; he paid in all $1,700. He was never before the police court but the one time, nor served with nor shown any papers in connection with the matter, but “paid to get off from being arrested”; it was “made plain” to him that he “had to pay or get off the street or be arrested,” and he paid to avoid the alternative; he “supposed the authorities had the right to demand the money, and paid it to the chief of police with that understanding”; he never knew the contrary until September, 1913, a month before he quit. Touching the reduction he says: “I had hunted up the members of the council and the mayor and asked them for a reduction; * * * but the mayor usually thought it was cheap enough. * # * Later some of the council thought it was pretty steep; # * * I told them I could not stand the price, and if they did not reduce it I would get off; # * * they reduced it to $50.” On cross-examination he says his wagon was at the location desired every afternoon and evening from July, 1908, to October, 1913, that he did not know that he was there contrary to any ordinance, [259] but supposed he was rightfully there, and that he sought a permit in the first instance because he knew he would have to have a permit of some kind and wanted to get along with the city. It is beyond doubt that we have here one of those left-handed [1] transactions in which city officials too often indulge, and which bear upon their face the stamp of irregularity, carrying to every mind, particularly to the participants, the knowledge that something is wrong. In view of this and of the facts that the plaintiff had started without leave and been stopped by the chief of police, had then sought and been denied a permit by the council, had thereafter secured an “arrangement” which was inaugurated in the police court and transacted through the police office, he cannot plead total ignorance or innocence, or assert, as he does, that he was wholly misled and deceived by misrepresentations or false claims of rightful authority upon the part of the city officials. These inferences the evidence on the part of the city but serves to emphasize; for, instead of aiding the plaintiff, it tends to show that his location at the coveted point was the result of an “arrangement” between him and the mayor; that this arrangement was made after he had been told of ordinances which forbade him to keep a wagon on the streets, prevented the granting of any such license or permit as he desired; and that the ■ arrangement required him to make the quarterly payments in such a way that they were obviously the price of immunity from interference. Now, the city got all the money the plaintiff paid; and either it had or it had not the right to permit him for a price to occupy, and therefore obstruct, the street with his wagon. If the city had that right, and the method only was irregular, the plaintiff has no complaint even on his own theory. If the city had not the right, then the wrong done was against the public, against others, not the plaintiff. He still got what he bargained for — the enjoyment of the desired location for over five years, undisturbed by interference on the part of the city. [260] What he sought was immunity, and it was granted. If it was unlawfully granted, he was in pari delicto, and the law will not aid him to recover back the money which, so far as he is concerned, represents value received. “In pari delicto, potior est conditio defendentis.” On any theory, therefore, the plaintiff is not entitled to recover upon the evidence presented; in other words, the judgment stands unsupported by evidence. It is therefore reversed, with directions to dismiss the action. Reversed and remmded. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.