(after stating the facts.) Was the finding of the court correct? Under section three of the ordinance the applicant for license had to file with the recorder the receipt of the treasurer of the town for the amount of money required to be paid for the license before the .recorder was authorized to issue the license, and under section four the applicant for license had to first pay into the treasury of the town the sum of $500.
It will thus be seen that the issuance of the license was illegal. The license itself was void. It conferred no rights and no protection to the applicant against the penalties of a violated law, and of course imposed upon him no obligation to pay the note which he had given for such license. The note was wholly without consideration and void. The supreme court of Nebraska, in discussing a question similar to this, said: “There was still no authority for the issuing of the license without payment in full of the license fee. The payment into the village treasury of the sum of $500 was just as essential to a valid license as the petition or notice. The proposition that the several municipal bodies can, under the provisions of our statute, license the sale of liquors on the credit of a licensee is not entitled to serious consideration. And a license so issued is not voidable merely, but void.” Zielke v. State, 60 N. W. Rep. 1010. The same may be said of the license for which the note was given under the ordinance set out above. See also Fry v. Kaessner, 66 N. W. Rep. 1126. An officer having charge of the collection of fees for liquor license has no authority to receive anything in payment but legal tender money, or such money as passes current at the time. Black, Int. Liquors, § 184, and authorities cited. Fees or charges for liquor licenses: are not “debts,” in the ordinary acceptation of that term. The only methods for the collection of such fees are those provided by statute; and if the statute does not provide for their, collection by civil action, no such action can be maintained. Especially could this not be done in the face of an ordinance which provides for the payment of the license fee before the license shall issue, and prescribes the amount of the liabilities to the town, county or state in case of a sale without license, which, is collectible by criminal procedure. Black on Int. Liq. § 185, and authorities cited.
“The conditions of taxation were not imposed for the primary purpose of increasing the revenues of municipalities that receive the tax. They are imposed for motives of public policy, to restrain the sales of a dangerous commodity, and confine them in the hands of responsible and law-abiding parties, who can make good such claims as are laid upon them. The payment of the money to the municipality is resorted to as an equitable distribution, somewhat proportioned to the mischief' likely to arise from the traffic. But no community has the right to determine for itself whether this money shall be collected. The duty of the officer is absolute, and made so because the community is not to be damaged by the indisposition of its legal guardians to protect it. The policy of the law cannot be lawfully thwarted. The law would be a dead letter in those places needing its enforeement, if the local authorities could thus defeat its operation.” The above quotation is taken from the decision of the supreme court of Michigan in a case where a sheriff took a note for liquor license, under a statute making it a misdemeanor for one to sell liquor until he had paid to the county treasurer of the proper county the full amount of the tax, and authorizing the treasurer, in case of non-payment, to issue his warrant for the amount to the sheriff, who was authorized to collect same by levying on certain property, etc. “The arrangement,” said the court, “was illegal, and the note void.” Doran v. Phillips, 47 Mich. 228; Baldwin v. Scoggin, 15 Ark. 427; Shorman v. Eakin, 47 Ark. 351. So say we. Newsom v. Thighen, 30 Miss. 414; McWilliams v. Phillips, 51 Miss. 196; Greenhood, Public Policy, pp. 306, 310.
Second. The court did not err in excluding the testimony of a certain witness going to show that the town council met and decided to allow Sam Standiford to give the note in controversy for his license.
An ordinance of the town could not be proved m this way, and nothing short of an ordinance would have been sufficient to authorize the taking of the note, and it is shown that no such ordinance was passed.
Affirm the judgment.