The San Francisco call., 1897-12-07
DENIES ITS LEGALITY,
City Attorney Dow Advises the City
Council Not to Refund Rooney's
Tax MoneY.

OAKLAND, Dec. 6.-The Finance Com
mittee of the City Council presented that
boly with the Official opinion of City
Attorney Dow tonight on the request of
owen Rooney, the restaurant and saloon
keeper al the moe, for return of the
money rad for a city liquor license for
the last TWO years or more. The opinion
in full is a 5 follows:
IIeturn herewith the demand of Owen F.
Rooney for $1,000, heretofore referred to n me
by your Honorable committee. The said de-
mand is tor money paid by claimant to the
city Oakland from time to time since May
10, 1895. for licenses 10 conduct d sa loon at
the Oakland mole, and is made upon the
ground mat tie SAID moe Is and was al all
the times. therein mentioned outside of the
city OF Oakland, and that the eIaction of such
licenses from the Claimant was illegal and
void.
The facts presented 10 The Supreme Court of
this State in the case oI Maxwell VS.. County
OF San Luis Ooispo, reported in volume II OF
California Reports, pege 466. are quite
similar 10 those presented by the said ciaim-
ant. In The Maxwell case it appears tn at the
plaintiff sued the county for return OF money
paid by plaintiff to secure business licenses
which payments we're exacled by the county
without authority OF law, and that each OF
said payments was made under and by reG-
son OF threats OF legal prosecutions, andIWould
not have been made but Tor such threats.
In deciding the case the Supreme Court
held that the facts presented showed q volun-
tary payment, and tnat money PAD to n Tax
~
tax in order TO avoid Grim nal prosecution on
account encouragement. OF 10 which the invalid
ity of the la purporting 10 authorize the lax
would be a perfect dele. Sc, is a VoluntarT
payment and cannot be recovered bv the
payor. Il is further stated by the court that
when a voluntary payment is spoken OF the
qualifying word is not used in lis ordinary
sense. and many payments are held TO be vol
untary which are made unwillingly and only
as choice oil evils or OF risks.
In view of the foregoing l find 1t my duty
TO report TO your honorable committee that
the sad demand is not legal ella III against
me city, and that the allowance thereof by
the City Council would be unauthorized by
law.
Garbage Ordinance to Be Tested.
OAKLAND, Dc. 6-Thc Garbage Gre
mating Company has sworn TO comp ain S
charging three of the Scavengers Union
with violation cf The recent ordinance
passed by the City Council giving them
monopoly Of the business. The com pany
is reprtsented V J. A. Marie n tein, It's
secretary. while the scavengers are B.
Delucci, Ramposa Secondc and A. Y.
DeyenchanZi. The Union has retained an
attorney, and a hard technical hight will
be made on the ground that the ordinance
Is unconstitutiona.
In Temporary home.
OAKLAND, Dec. 6.-The CONGREGATION
of the Church of the Sacred Heart, whose
house OF worship was burned at an early
hour Thanksgiving morning, worshiped
inawooden structure yesterday erected
on the ground adjoining the burnt build
ing. The mem bers erected II themselves
at cost not 10 exceed $780, including
material.
Came from Oregon to Die.
OAKLAND, Dec. 6.-Miss Fannie Con-
aon, sister 1 Deputy City Atttrney S.
W. tondon, who recently came here from
Eugene, Or, for her health with twin
us er and another brother, died at the
faeiola Hospital last evening of basilar
meningitis.
Diphtheria Closes a School.
OAkLAND, Dec. 6.-The Upper Fruit
Vale schooi was closed last week by order
OF me Trustees who feared an epidemic OF
olpAthefa. While there were less than