El Nuevo mexicano., 1918-10-17

conscience required the city to re-
fund the money.
In Nurnberger W. narnweiI, AZ 8,
[C. 1853, 20 s. y. IA, Il was held that
where, after the passage az the dis
pensary act providing that ne license
for the sale OF spirituous liquors
should be OF any force after a GER
tain date, but that licenses might be
extended to such date upon pay
ment Of one-half Of the annual fee,
a liquor dealer, after having com
piled with the requirements for OBJ
tanning 4 license, rendered to a town
council one-haif the license fee. de-
manding a license for six months, Ok.
piring on the day mentioned I'M the
dispensary act, which fee the town
council refused to accept and de-
manded the full amount Of the an
nual license fee, which was paid by
the dealer under protest, and upon
the promise Of the council that II
the license should be void after the
date mentioned In the dispensary act
the council would repay the excess,
the licensee upon being compelled to
discontinue business after such date
was entitled to recover the ces
amount paid for the annual license
fee, and that such money did not
properly belong to the municipality.
In Alexander VS.. State, n Ark. 294.
81 s. W. 1872 1t was said that n
who obtained a license upon the
revocation of the prohibition order
was not entitled, upon reinstatement,
Of said prohibition order, to the re-
turn Of the money paid for the IL
cense.
In Peyton VS.. Hot Springs COM
pany, SO Ark. 236. 10 s. w. 764, the
same rule vas announced.
The foregoing authorities are suf-
ficient to show that the law covering
the question you ask is very unsatis-
factory, and, 1t is hard to determine
Just what the true rule may be. The
authorities holding that a person Is
entitled to recover the unearned por-
ton of the fee seem to so hold upon
the theory that It Is but right for
the county to make such return, and
that the party Issuing the H.
cense is responsible for its becoming
imperative. The Washington. Ne
braska, Oklahoma and Missouri
cases seem to be based upon THIS
view. But in our opinion these cases
are not controlling in this state upon
this question for the reason that the
county is not to blame. nor resonsi-
h1o QAw kha lfaanun hnnarnfn~ ~ m
So far as the county which
granted the license IS concerned
1t is valid. The liquor dealer may
go ahead and sell under the license.
No prosecution could be instituted
by the county and none would be.
The state, and not the county, Is re-
sponsible for the prohibition law
which makes the license valueless.
Had the county, the party granting
the license, by its act rendered the
license ineffective, the cases men
might be controlling, but in
view OF the fact that it was the
state, and not the county. which put
INTO effect our statewide prohibition
.aw, we do not think 1t can be said
nat the ~licensee has been deprived
his right by the act Of the county.
We conclude the cases which hold
hat fees can be recovered On this
'eason are not conclusive, but rather,
n our opinion, the unearned portion
II the fee should not be refunded.
Another reason why the unearned
of the license fee cannot be
efunded is that under our laws the
money paid for q license is distribut
d by the county treasurer in the
different funds. The fee paid has
Iassed beyond the control OF the
ounty authorities, and 1t may be
he county is not liable for its re-
ind for this reason alone.
We are further inclined to render
his opinion. for by SO doing we viii
york no injustice If U conclusion
J incorrect and the courts should
old they are entitled to a return of
bis fee, the licensee has his remedy
Y going into court and can recover.
ut If we should hold me was entitled
recover and the county should pay
out, the county would have no re-
purse, and the question could not be i
idicially determined. 4
Therefore, you are advised that \
is the opinion Of this office that I
lis claim should be rejected. L