El Nuevo mexicano., 1918-10-17
RECOVERY OF PORTION or LIQUOR
LICENSE FEE BECAUSE OF PROHIBITION
Attorney General Patton, In Interesting Opinion,
Holds That Unearned Fee Need Not Be Refunded
By County Officials; State Not County Is Respon-
sible fof Dry" Law.

irving at this conclusion are Nebraska
EOhio and Missouri decisions.
Opposed to these authorities are
numerous decisions holding to the
contrary. In the Washington case II
is said the rule they announce is not
supported by the weight of authority
in other jurisdictions. In the case
OF Sharp vs.. Carthage, 48 Mo. App. 2G,
wherein the district court held that
where a liquor dealer was required to
have both a city and county license.
and having taken out a city license
was thereafter unable to obtain q
county license because Of a vote taken
by the city in the meantime prohibit
ing the sale of intoxicating liquors,
the city, by it's act having rendered
the license worthless, was bound to
refund an appropriate part of the mon
ley paid even though the city license
was taken out the day before and in
view OF the election to be held the
following day there was a strong dis
senting opinion by Justice Thompson
who said:
"The plaintiff, by attempting to
t0hG Vut q ACW ALQAbO " ~ JCal 0O~
fore the old license had expired, in
anticipation OF the election about to
be held and in order to defeat for
nearly a year the will OF the voters,
so far as he was concerned. attempted
a fraud on the law, and is, therefore,
in no condition TO have the aid of a
court of Justice In recovering his mon
ey back. Nor do / see that the city
has done, or threatened to do. any
thing to defeat the privileges granted
by its license. 1t does not offer to
prosecute him for keeping open his
.dramshop, and ii has not guaranteed
him against prosecutions by the state
for not having county license
THE city is clearly estopped by its
license from prosecuting the plaintiff
= | cannot see any difference
between this case and the case which
would be presented il a dramshop
keeper should take out city and GUN
'ty licenses, and then fail to make
them available because he could not,
for some reason, procure a govern
nlent license,-in which case, | sup
pose no one would contend that he
could sue for and o back the
money paid for his city and county
licenses"
In Chamberlin VS.. Tecumseh, 43
Neb. 221, Az AM. st. Rep. 1853, GIL N
w. 632, which Ii N OF the cases
cited by both the Washington and
Oklahoma courts. the court, while
agreeing that it was a settled law Of
the state that where a liquor dealer
had been issued a license by the
city council, and on appeal such IL
cense was cancelled, that the licensee
was entitled to repayment pro tanto
OF the sum paid: also said that each
member of the court as 1t was then
constituted, entertained doubt as to
the soundness OF the doctrine laid
down by the Nebraska decisions, but
that they did not feel Justified in
disturbing a rule which had been so
long recognized by their courts.
The supreme court Of Georgia in
the case of Fitzgerald VS.. Witehard,
,1SO cd. 552aG1sS E.5 227, l6i y. RI "A.
.(NS.) 519, heldfthat where the city
had received a fee and issued a IL
cense for the sale of intoxicating LID
uors for the remainder of the year,
but before the expiration of the time
a law was enacted providing for a
higher license fee. because Of which
law he a compelled to quit busi-
ness, that neither equity nor good