Callaway v. Mayor of Milledgeville

48 Ga. 309

• Court: Supreme Court of Georgia
• Decided: January 15, 1873
• Status: Published

Opinion

Trippe,. Judge.

If an injunction will be granted against a municipal corporation to restrain the collection of an illegal tax, will not an action lie to recover that tax if it be paid; can a reasonable reply in the negative be made ? Is not an affirmative answer almost a necessary legal corollary? If a party can enjoin the doing of an act because it is wrongful, can he not recover damages when that act is done, especially if he suffer damage from it. In 42 Georgia, 235, it was decided that the City Council of Milledgevijle had no authority to collect a license fee for the sale of liquors within the corporate limits of the city. In the case of The Cherokee Bank and Insurance Company vs. Justices of the Inferior Court of Whitfield county, 28 Georgia, 121, a mandamus was allowed against the Justices to force them to refund to the relators the tax for two years which it was held the county had illegally assessed and collected from them. The principle that allowed the mandamus *in that case would sustain the common law action in this. It is hardly possible to conceive a case, except in certain instances of pari delicto, where a party illegally obtaining money cannot be made to pay it back. Here the same party (the city) who got the money is called on to repay. It is not like a case of attempted recovery for error of judgment in judicial officers. Nothing is demanded of the officers who committed the error. They did not act judicially in assessing and collecting the tax. The city has the •money, and under the decision of this Court has it illegally, and on the principle of returning what ex aequo et bono does not belong to it, should repay it. This is not like the case of a part3^ voluntarily paying money to another under mere ignorance of the law. Here they do not stand on an equality. No suit would have been brought to enforce the demand. The claimants of the tax or license fee held the power of a government in terrorem over the plaintiffs in error. They could issue their own process to secure their demand, and a levy and sale were the sharp and quick remedies to enforce it.

Judgment reversed.