
    EGE, et al., Appellants, v. WILLIAMS, Mayor, et al., Respondents.
    (159 N. W. 898.)
    (File No. 3978.
    Opinion filed November 13, 1916.)
    1. Intoxicating Liquors — Invalid License — License Pees — Enjoining Refunding of License Money — Voluntary Payment, Effect.
    In a suit by taxpayers to restrain city officials from repaying to liquor licensees a .part of the license money, where the license itself was invalid, held, that, although the payment of the license money was voluntarily made, but was made under ■an honest, mutual mistake as to the validity of the liquor license election, tire city, although it might not be compelled to repay the money, may, if it sees fit, return the same .pro rata for that part of the license period occurring after adjudication of the validity of the election.
    2. Evidence — Re-payment of License Money — Presumption as to Previous Resolution for Re-payment — Statute.
    In a suit to restrain refunding of part of liquor license money by city officers, there being no evidence that the officers would repay without further action than that already taken by commencement of a suit to restrain repayment, it will ‘be presumed that no payment will be made until a resolution therefor has been passed by the city council, as required by Pol. Code, Sec. 1209.
    Appeal from Circuit Court, Turner County. Hon. RobRrp B. Teipp, Jud'gie. •
    Action.' by W. E. Ege and others, against Erank Williams, ■as Mayor of ’the City of Centerville, a municipal corporation, and others, to restrain defendants from repaying certain liquor license money. Brora a judgment denying the relief prayed for, Appellants, appeal.
    Affirmed.
    
      Bogue & Bogue, for Appellants.
    
    
      Joseph Jcmousek, ¡and W. R. White, for Respondents.
    (1) To point one of the opinion, Appellants cited: Evans v. Hughes' County, 3 S. D. 244; Civ. Code, Sec. 1271; Laws 1913, Ch. 258; Stephen v. State, 19 S. D. 314, 103 N. W. 44; C. & J. Michel Brewing Comp'any v. State, 19 S. D. 302, 103 N. W. 40; Custin v. City, 67 Wife. 314, 30 Ñ. W. 515; Bender v. City of Fergus Balls, (Minn.) 131 N. W. 849; 1 Woolen & Thornton on Intoxicating Liquors, Sec. 497; Joyce on Intoxicating Liquors, Sec. 330; 3 McQui-llin Municipal Corporations, Sec. 1009; People v. Schafron, (Mich.) 134 N'. W. 29; Town Council of Cahaiba v. Burnett, 34 Ala. 400; In re Lyman, 59 N. Y. S. 828, 28 Mise. Rep. 278; Roberts v. 'City of Boise, 132 Pac. 306; Town of Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323.
    Respondents cited: City of Hunkey, (Ky.) 170 S. W. 1172; Shue v. School Disit. (Neb.)- 153 N. W. 567; Scott v. New Castle, 21 L. R. A. (N. S.) 112; State ex ral. Maddau-gh et al., v. Ritter, (Wash.) 134 Pac 492; Allsman et al. v. Oklahoma City, 21 Okl-a. 142, 17 A. & E. Dec. 184; Pearson- v. Seattle, (Wash.) 44 Pac. 884; Spalding v. Lebanon, (Ky.) 49 L. R. A. (N. S.) 387; Martel v. City of St. Louis, 94 Ill. 67; Hir-m v. State, 1 Ohio State, 15.
   WHITING, J.

The question, “Shall intoxicating liquors -be sold at retail?” w-a-s submitted to the voters of the -city of Center-ville, iS. D. A -majority of 'the -bal-lote -cast were in favor of such sale. The question was submitted upon -the same ballot upon, which were found the names of the -candidates for the various' municipal offices. Immediately -after the 'declaration of the -result of such election! upon this question, a contest was instituted, seeking -to have such election declared void, owing to the failure to comply with- the statute and submit the question upon a separate ballot. The trial -court held1 the election legal. This judgment was -rendered in June. After the holding of the election,' and .pending the decision of -the .trial -count, 'defendants Hewet-t -and Griffin- -presented petitions to the proper authorities, seeking permits to sell intoxicating liquors in staid city for the year commencing July 1st. These petitions- were not acted- upon until after the judgment of the trial -court. The -petitions were then granted, and the petitioners each paid into the treasury of staid •city the license fee required under tlli-e ordinances of such -city and received the permits asked for. Commencing with July is-t, these defendants entered upon the sale -of intoxicating liquors under s-ucfa -permits. An appeal was- taken from- the judgment -of the trial court, and this -court, in the case of Tuntland v. Noble, 30 S. D. 145, 138 N. W. 291, Ann. Cas. 1915A, 1004, reversed the lower -court, -and! held invalid th-e election upon -the above-mentioned question-. 'Upon receiving notice of the decision of this court, said’ defendants closed their saloOn-s. They thereafter each- sought reimbursement from the city o-f Centerville for such •proportion of the license money paid as1 the period1 of the license year remaining after the decision of this court bore to the whole year for which '110611503 were paid and permits -issued. Such claims being presented- to -the said city, the council thereof — five of the six members elect being present — by -a vote of 3 for, 1 •against, and 1 not voting, voted ion favor thereof. The city auditor drew a warrant therefor but the then acting mayor refused to sign same, but the present council will pay the Claims un'less restrained. This action was -instituted1 by plaintiffs as electors and1 taxpayers of said -city, and .plaintiffs seek to restrain the city and -its corporate officers from, p-aying', or attempting to pay, or from issuing any warrants, or doing any acts or things in reference to -paying, the isaid claims; and -plaintiffs ask that said claims be declared1 void. The trial court -denied the relief .prayed! for, and from such judgment, this appeal was taken.

Appellants -contend that the payment of the license money was a voluntary- payment, 'and therefore-, under the holdings of this court in Evans v. Hughes Co., 3 S. D. 244, 52 N. W. 1062, Michel Brewing Co. v. State, 19 S. D. 302, 103 N. W. 40, 70 L. R. A. 911, and Steffen v. State, 19 S. D. 314, 103 N. W. 44, cannot be recovered. While it is true- that th-i-s court and the Courts of a majority of the states ¡have 'held that a voluntary payment of license money cannot generally be recovered, it -is of importan-ce to note that, in none of the cases- presented to- this court, has this court been called upo-n to- determine the right of repayment where license money had been -paid under a mutual mistake of either fact or law. This question was -attempted to- be raised in the Michel Brewing Co. case, but this court found there was no mistake of law.

But the present -action is not -an -action wherein the licensees are seeking judgment for the recovery -of the license money, and1 it is not necessary for -us to- -determine their right to such recovery. In this action, -appellantsi, as- taxpayers, are seeking to -take advantage of payments- that were made under an honest -mutual -mistake as to- the validity of the election — are -seeking ¡to- keep from these licensees that whi-ch- in honesty and good conscience belongs to- them-. Our attention has been called t-o n-o statute forbidding th-e -city from returning this money, and there a-re- -c-ertainiy no reasons- which, w-oul-d appeal to- a -court of equity as warranting it to restrain the city from doing this act of common honesty and' justice. This is not a case like that of City v. Fitzgerald v. Witchard, 130 Ga. 552, 61 S. E. 227, 16 L. R. A. (N. S.) 519, wheire it wa's held that the court would restrain the repayment of license money where the license had been legally granted, where the city did not revoke the license and such licenses were not returned to the city, and where the licensee ceased to engage in the business licensed, without any interference, or order, or direction, or fault, of the city. This case is almost on all fours with the case of State v. Ritter, 74 Wash. 649, 134 Pac. 492, like iShis an action seeking to restrain a city from repaying license money paid) for a void permit. We adopt, as applying to this case, the following from- the opinion-in that case:

“It is true that there is no statutory warrant for such repayment, nor -is -any necessary. The right is founded in the doctrine of common honesty. * * * Such repayment might not be, compelled1 — that question is not before us — but the council may, if it sees fit, -return an.y money which has been p'aid under a mistake of law or loif fact, and to which it has no- moral claim.”

There was no evidence nor finding- that the city officers would ¡paj'- this -claim without further action than that already taken. We, therefore, presume -that no payment will be made) until a resolution therefor has been passed by a majority -vote of all the members elect of the -city -council. Section 1209, Pol. Code. Tine appellants are not entitled to the relief asked, -and the judgment is -affirmed.  