Alpena weekly argus. [volume] (Alpena, Mich.) 1871-1893, 1878-03-06
LIQUOR SUITS.

Hon. Judge Tuttle on the liquor
suits, lately decided against TIT
city:
This is an action of assumpsit
brought by the plaintiff against the
defendant, for money paid by plain
tiff to defendant in the year 1878
under and by virtue of a supposed
ordinance of the defendant, for the
privilege of keeping hotel within
the limits of the defendants cor
poration. The plaintiff claims that
he paid the money by compulsion,
to prevent the arrest and imprison-
ment of his person, and also that
the money was paid under a mu-
tual mistake of fact. The case was
tried at the November term of the
Circuit Court for the county of AL
pena, before the Court, without a
jury. The parties ask for find
ing of the law and facts under the
statute. The facts are as follows
On the oath day of February, 1878,
the committee on ordinances of the
Common Council, city of Alpena, re-
ported to said Council ordinance
No. %. Said ordinance so report
ed was entered at length on the
record of the proceedings of the
said Council, as appears by their
record of that date, but there is
nothing in or about the record that
tends to show that the ordinance
was ever passed or enacted, and it
is admitted that said supposed or
dinance was void. Early in March,
1878, said supposed ordinance was
by authority of said Council pub
lished two successive weeks in the
ALPENA WEEKLY ARGUS, a news
paper published in said city. At
tire time of the said publication of
the supposed ordinance, the plain
tiff resided in the city of Alpena
and kept an hotel. BY the term
of the supposed ordinance, the City
Marshal and policemen were re-
quired to see "that this ordinance
is strictly enforced" A violation
of the supposed ordinance was
punished by fine and Imprisonment.
Soon after the publication of the
supposed ordinance, the City Mar
shall served plaintiff with two
notices, written or printed, to pay
into the city treasury fifty dollars,
being the amount of one quarter
tax provided for and required by
the supposed ordinance. The Mar
shall then went in person to the
plaintiff and told him he must pay
the tax or he would be arrested
under the supposed ordinance
Thereupon the plaintiff went to
the Recorder, whose duty it was by
the term of the supposed or6in-
ance, to issue the license to a hotel
keeper. The Recorder informed
plaintiff, as had the Marshal, that
he, the plaintiff, must pay the tax
in question or he, the plaintiff,
would be arrested. Thereupon the
plaintiff, to avoid or prevent the
arrest of his person, made an ar
rangement with the Recorder, and
soon after paid the tax amounting
to the sum of fifty dollars, but pro-
testing to the Recorder at the time
Of payment that he believed the
city had no legal right or power to
tax his business in that manner,
and that if he could recover the
money back, he would do so. The
money thus paid by the plaintiff to
the Recorder was paid into the
treasury of the city of Alpena for
its use and benefit. The above
sum was paid by the defendant on
the 18th day of March, 1878. In
the month of June following, anoth-
err quarter tax fell due by the term
of the supposed ordinance, amount
ing to fifty dollars, and plaintiff was
again notified by the Marshal that
if he failed to pay, he would be
prosecuted by the terms Of the or
dinance, and tbereupon the plain
tiff again went to the Recorder
and informed the Recorder that he,
plaintiff, had not the money where
with to pay the tax, and thereupon
the Recorder extended the time for
payment thirty days, and within
the thirty days paid the sum Of
fifty dollars to the Recorder, which
sum was paid into the treasury Of
the defendant for its use and bene-
ct, and that the sum so paid by
plaintiff TO defendant was paid