
    GEORGE J. TOMAN, APPELLEE, v. TOWN OF WESTFIELD, APPELLANT.
    Submitted December 8, 1903
    Decided February 23, 1904.
    1. Where a license lor the sale of liquor has been revoked, the license fee cannot be recovered back so long as the order of revocation remains unreversed.
    2. A stipulation that the order of revocation was made illegally cannot authorize the court to entertain a suit to recover the license fee.
    On appeal.
    Before Justices Garrison and Garretson.
    For the appellant, Paul Q. Oliver.
    
    For the appellee, James O. Connelly.
    
   The opinion of the court was delivered by

Garretson, J.

The plaintiff was licensed by the Court of Common Pleas of Union county to sell liquor, in quantities from one quart to live gallons, for one year from March 19th, 1902, and paid a license fee for the same of $150 to the county clerk, who paid it to the treasurer of the township of West-field, to whose rights and liabilities the defendant succeeded. It is further stipulated that this license was revoked by the court on the 9th of April, 1902. Counsel also stipulated that the license was revoked “not because the plaintiff had violated any law or given any cause for revocation, but because the plaintiff was not dwelling in tbe house for which the license was granted.”

The plaintiff’s contention in this case is that, the Court of Common Pleas having revoked his license for an insufficient cause, he is entitled to recover back the fee paid. This involves the determination by this court that the order of the Common Pleas revoking the license was illegal, and if it should be so determined the result would seem to be to leave the license in force and the licensee liable for the fee. But the court cannot in this way review the action of the Common Pleas; that must be done in a direct proceeding to set aside that order. And that is the plaintiff’s remedy in this case. The agreement of counsel in this case cannot induce this court to review the Common Pleas or to presume its judgment illegal. The plaintiff took his license subject to its possible revocation, and having paid the license fee, he cannot now maintain an action to recover it back because it appears that the Common Pleas has exercised its right to revoke by an order which, so far as this case now stands, is legal.  