Town of Ligonier v. Ackerman

Pettit, J.,

dissenting.—This suit was brought by the appellee against the appellant, and the case made by the pleadings is this: The appellee was a dealer in and retailer of liquors in the town of Ligonier under and by virtue of a license from the board of commissioners of the county. While this state of facts existed, the town passed an ordinance forbidding such traffic and trade within its limits, without a town license, and the payment of one hundred dollars a year for the same; and fixing and imposing a penalty of one hundred dollars for each violation of the ordinance; and the statute, 1 G. & H. 631, sec. 57, provides for imprisonment till any fine imposed by an ordinance of a town shall be paid or replevied. The officers of the town were charged with the enforcement of the ordinance, and two dollars were allowed to the informer in every case when a conviction was had. With this ordinance, a public menace and threat to destroy his then legal business, or compel him to pay money or be imprisoned till he did pay or replevy his fines, he applied for, took, and paid for license under the *579 ordinance. This was an overpowering advantage on the part of the town, and a sufficient duress of Ackerman to entitle him to recover back the money paid.

Subsequently, it was held by this court, 33 Ind. 507 , that the act under which the town ordinance was passed was unconstitutional; and this suit was brought to recover the money paid for license under the ordinance, and the only question presented is, can money paid under this state of facts be recovered back? The court below held in the affirmative, and I fully approve of its action, and cite without quoting, Steele v. Williams, 8 Exch. 625; Morgan v. Palmer, 9 Eng. C. L. 232, cited in the brief of the appellee, as 317, 319, 320, and 321; Same Case, 2 Barn. & Cres. 729, and -cases cited; Preston v. The City of Boston, 12 Pick. 7; Joyner v. The Inhabitants of School District No. 3, etc., 3 Cush. 567 ; The Town of Princeton v. Vierling, 40 Ind. 340 ; Duke de Cadaval v. Collins, 4 A. & E. 858; Maxwell v. Griswold, 10 How. 242 ; Harvey v. The Town of Olney, 42 Ill. 336 .

The above cases I have examined, and, in my opinion, they fully sustain the ruling of the court below.

I here insert a long list of authorities cited by the counsel for the appellee, but which I have not examined. They may be of interest to the bar in examining similar questions. Parker v. The Great Western Railway Company, 49 Eng. C. L. 253, 292; S. C, 7 Man. & G. 253, 293; Close v. Phipps, 49 Eng. C. L. 586; S. C., 7 Man. & G. 586; Waterhouse v. Keen, 10 Eng. C. L. 310; S. C., 4 B. & C. 200; Valpy v. Manly, 50 Eng. C. L. 594; The County of La Salle v. Simmons, 10 Gilman, 513 ; Ford v. Holden, 39 N. H. 143, 145, 146, 147, 148, 149; Pratt v. Vizard, 27 Eng. C. L. 198; Steele v. Williams, 8 Exch. 625; Gibbon v. Gibbon, 76 E. C. L. 205, 213; Ashmole v. Wainwright, 42 Eng. C. L. 938; S. C., 2 Q. B. 837; Follett v. Hoppe, 57 Eng. C. L. 225; S. C., 5 C. B. 226; Hills v. Street, 15 Eng. C. L. 358; S. C., 5 Bingham, 37; Unwin v. Leaper, 39 Eng. C. L. 635; S. C., 1 Man. & G. 747; Oates v. Hudson, 6 Exch. 346; Ripley v. Gelston, 9 Johnson, 201 ; Clinton v. Strong, 9 John *580 son, 370, 375; The Boston and Sandwich Glass Company v. City of Boston, 4 Met. 181, 187, 188, 189 ; Chase v. Dwi nal, 7 Greenl. 134; Snowdon v. Davis, 1 Taunton, 359; Shaw v. Woodcock, 14 Eng. C. L. 14; S. C., 7 B. & C. 7 3; Hearsay v. Pruyn, 7 Johns. 179 ; Dew v. Parsons, 18 Eng. C. L. 87; S. C, 1 Chit. 295; Payne v. Chapman, 31 Eng. C. L. 89; S. C., 4 A. & E. 364; Cadaval v. Collins, 31 Eng. C. L. 206; S. C., 4 A. & E. 858; Bates v. The New York Insurance Co., 3 Johnson Cases, 238, 240; Marriott v. Brune, 9 How. 619 ; Atwell v. Zeluff, 26 Mich. 118 .

I think the judgment should be affirmed.