Sims v. Village of Mer Rouge

74 So. 706, 141 La. 91, 1916 La. LEXIS 1725

• Court: Supreme Court of Louisiana
• Decided: June 30, 1916
• Docket: No. 21719
• Status: Published

Opinions

PROVOSTY, J.

An ordinance of the village of Mer Rouge reads:

“Be it enacted,” etc., “that the license tax to sell near beer during the year 1913 shall be $250.”

This ordinance by its very terms applied only to the year 1913, but plaintiff paid the said license for the year 1914, and now sues to recover back the amount thus paid. He alleges that he made the payment through error of law and fact and by mistake and—

“involuntarily, under pressure, protest, duress, and fear of criminal prosecution, as provided by both Act 178 of 1912 and the said ordinance.”

He alleges further that the money thus paid by him is still in the village treasury—

“because the said village, was in possession of a large surplus revenue when the money was paid in, and has been in possession of a large surplus ever since that time, and is in possession of a large surplus of revenue at this time, and this surplus contains the $250 belonging to your petitioner.”

An exception of no cause of action, based on the proposition that a tax voluntarily paid cannot be recovered hack, was sustained below.

There can be no moral obligation to pay a license never in fact levied; hence the money thus paid was due in no way, and, such being the case, can be recovered back, if made in error, unless its reimbursement as well as that of similar payments made by others, would cause disturbance to the finances of the village.

[1] In the absence of any allegation that the payment was made under compulsion such as might have resulted from an actual seizure of plaintiff’s property or from a threat of criminal prosecution actually made, the payment must be considered to have been made voluntarily. Simpson v. New Orleans, 133 La. 384, 63 South. 57; Fuselier v. St. Landry, 107 La. 221, 31 South. 678; Mayor and Board v. Moss Hotel, 112 La. 525, 36 South. 552; and cases thus cited.

Perhaps the better doctrine might be that a payment made under the compulsion of the alternative of having to either discontinue business or else expose oneself to the annoyance of a criminal prosecution with the attendant danger of conviction is involuntary (Atchison, Topeka & Santa Fé R. R. Co. v. Timothy O’Connor, 223 U. S. 280, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Gas. 19130, 1050); but the settled jurisprudence of this state is the other way. In the numerous cases involving liquor licenses in which the right of recovery has been denied the plaintiff would have exposed himself to criminal prosecution for selling liquors without a license if he had not made the payment, and yet in all of said cases the payment was held 'to have been voluntary.

Judgment set aside, and case remanded for trial; appellee to pay costs of appeal.