Hague v. City of Ashland

Maeshall, J. While the city charter of the city of Ash-land fixes the license or charge for the sale of intoxicating liquors at $500, the general law governs in regard to the restrictions and conditions upon which such license may be issued. Sec. 1549, R. S., provides that before the issuing of [631] ;a license the applicant shall give a bond as therein provided; ■and sec. 1548 provides that the license shall not be delivered until the applicant shall produce and file with the city clerk a receipt showing payment of the same, and until the bond is filed as provided by sec. 1549. The law contemplates the following steps in taking out a license: First, application in writing made out as the statute provides; second, favorable action on such application; third, the filing of the bond properly approved; fourth, payment of the amount of money required to the city treasurer; fifth, deposit with the clerk ■of the treasurer’s receipt showing payment; sixth, the issuance of the license attested by the clerk. Until all these steps have been taken, the applicant cannot lawfully commence business. In this case it appears that the $200 was paid as a partial compliance with one of the conditions precedent to the commencement of the saloon business, and thereupon, without waiting for the performance of any other condition, plaintiff’s assignor opened up his-saloon, and continued to run the same for some three weeks. It is laid down as a settled principle that, where money is paid in compliance with a condition precedent to the right to ■engage in the sale of intoxicating liquors, it cannot be recovered back. Black, Intox. Liq. § 188. So, in cases where the law requires payment of the money at the time of making the application, it cannot be recovered back if the application is denied. Trainor v. Multnomah Co. 2 Oreg. 214. The ■court there said, in effect: The law requires the applicant to present his application with a receipt showing payment of the money into the county treasury. Its payment is a condition precedent to his applying for a license, and not a deposit. Therefore, if the application is refused, such payment cannot become the foundation for an action to recover back the money. To the same effect are Edinburg v. Hackney, 54 Ind. 83; Board of Comm'rs of Monroe Co. v. Kreuger, [632] is otherwise where the law does not require payment of the money as a condition precedent to the consideration of the application. In such case, if the applicant pays, in whole or in part, his money in to the public treasurer, such treasurer really receives it without authority of law, and, until' the license is granted, the money continues the property of the applicant, and subject to withdrawal, unless such right is forfeited by some act on the part of such applicant. State ex rel. Noonan v. IAnooln, 6 Neb. 12. These cases are all in harmony with the proposition that when payment of the money is not a condition precedent to the consideration of the application, or is not paid as a compliance with such condition, the title to the money, if paid, does not pass, so long as it continues as a mere deposit, and may he recovered back $ hut if paid as a compliance with a condition precedent, then it cannot be recovered back. Therefore, plaintiff can recover in this case unless the fact that he opened up his saloon and ran it three weeks after payment, of the money converted it from a mere deposit, as in the case of State ex rel-Noonan v. Lincoln, into a compliance with the condition precedent, as in the case of Trainor v. Multnomah Oo. 2' Oreg. 214. The case appears, in principle, identical with Gurry v. Tawas, 81 Mich. 355. Plaintiff paid his money, and immediately commenced business, without waiting for his license; He made application for license, and presented the bond. The board refused to approve the bond, and upon his failure to present one satisfactory, he was compelled to close up,, and thereupon he demanded back his money and brought his action to recover it. The court held that he, having voluntarily paid the money, and by commencing business-converted such payment into a compliance with one of the-conditions precedent to the right to engage in the sale of intoxicating liquors, and then abandoned such business because he was unable or unwilling to comply with all the; [633] conditions precedent to tbe issuing of bis license, could not. recover it back. 'This is a very salutary rule, but it is merely a plain application of tbe general and familiar principle that,, where payment is made in compliance with a condition pre-. cedent, it cannot be recovered back merely because the1 payer is unable or unwilling to comply with all the conditions. It follows that the judgment appealed from is right. By the Court.— The judgment of the circuit court is affirmed.