
    Leonidas N. Callaway, plaintiff in error vs. The Mayor and Aldermen of the City of Milledgeville, defendant in error. Toll & Doerflinger, plaintiffs in error vs. The Mayor and Aldermen of the City of Milledgeville, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Municipal Corporation — Spirituous Liquors — License.—A municipal corporation which has, without authority of law, levied and collected a license fee for retailing spirituous liquors, is liable to an action by the party paying the same for the recovery of the amount of the fee thus paid.
    Municipal corporation. License. Before Judge Robinson. Baldwin Superior Court. August Term, 1872.
    
      The above cases, involving the same questions; were argued and decided together.
    They were heard upon the following agreed statement of facts:
    “The plaintiffs, Leonidas N. Callaway and Toll & Doerflinger, being liquor dealers within the corporate limits of the City oí Milledgeville, were, by an ordinance of the City Council, required to take out licenses during the years 1866, 1867, 1868 and 1869, to retail spirituous liquors in said city, and for said license for the year 1866, Callaway paid to the *clerk of said Council $50 00, for the year 1867, $151 00, for the year 1868, $10100, and for the year 1869, $10100. Toll & Doerflinger paid to said clerk for the year 1867, $150 00, for the year 1868, $101 00, and for six months of the year 1869, $51 00. By a decision of the Supreme Court of Georgia, the power of the said City Council to grant license to retail spirituous liquors was denied, and therefore the exaction of said license fees was unauthorized. The Ordinary of the county of Baldwin now claims from the plaintiffs the amount of a county license to retail, for the years they were licensed as aforesaid by said City Council. The plaintiffs brought their actions to recover the amount of said license fees thus illegally exacted from them.”
    The Court dismissed both cases and the plaintiffs excepted.
    I. L. Harris ; SandEord & Furman, for plaintiffs in error.
    L. H. Briscoe, by Z. D. Harrison, for defendant.
    
      
      Municipal Corporation — License—Recovery.—In the case of Callaway v. Milledgeville, 48 Ga. 309, it was held that “a municipal corporation which has, without authority of law, levied and collected a license fee for retailing spirituous liquors, is liable to an action by the party paying the same, for the recovery of the amount of the fee thus paid.” It was also there said that an action would lie to recover an illegal tax, if paid. This decision was afterward (Com’rs of Thomson v. Norris, 62-Ga. 541) treated as follows: “The. principle ruled there will not be extended beyond cases covered fully by similar facts to those in that case, that is, to cases where the grant of the license for any sum was beyond and without the jurisdiction of the municipal corporation granting it. Where the question is only as to' the amount of license fees, and such amount is paid without any compulsory process whatever, we think a distinction can be drawn,- and the principles of justice and the great current of authority demand that the rule in that case laid down be not extended where other facts exist than are in that case, making. a different case.” See also, Savannah v. Feeley, 66 Ga. 31; McGehee v. Columbus, 69 Ga. 581. In the latter it was said: “The case in the 48 Ga. 309, if it can not be taken out of this stream of adjudications, must be swept away by them. * * * It is difficult to reconcile that case with these; yet, as these are in harmony with that current to which allusion is made in 62 Ga. 541, they must control rather than that exceptional case.” It will be observed that in neither of these cases was the decision in the 48 Ga. 309, reviewed and expressly overruled as required in the Code. Weaver v. Carter, 101 Ga. 212, 28 S. E. Rep. 869. See Tatum v. Trenton, 85 Ga. 470, 11 S. E. Rep. 705; McGehee v. Columbus, 69 Ga. 582; National Bank v. Americus, 68 Ga. 124; Thomson v. Norris, 62 Ga. 541. See Ency. Dig. Ga. Rep., vol. 7, p. 755.
    
   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.  