delivered the opinion of the court:
On the 5th day of January, 1893, the board of council of Clay City refused to grant to the appellants a license to sell liquors unless they would pay the sum of $750 therefor. They knew at the time this sum was demanded and paid that under the charter of the town the board of council could only require the payment of $300 for such license if the board saw proper to grant it. In view of this fact they protested against paying any sum exceeding $300. The city refunded $200 of the amount which they paid. This action was brought to recover $250, the amount which appears to have been illegally demanded.
The appellants allege that, before they made an application to the county court of Powell county therefor and obtained a State license to retail liquors in Clay, City, they applied to the authorities of the city who had the authority to grant a license to retail liquors, and were informed that if they obtained a State license that the council would grant them a license to retail liquors; that in view of that fact they obtained *569a State license, rented a house, and got ready to do-business.
These facts appear in the petition as amended, to which the court sustained a demurrer.
There is no statement of facts which indicated that the board of council had, in its organized capacity, made any order to this effect. If it had done so it could have reconsidered its action and refused to grant the license; hence, we are of the opinion that the statements as to the alleged promise of the authorities is immaterial as to the question involved. The question is, was the payment a voluntary one. The peculiar facts of each case must determine whether the payment is involuntary or voluntary. If the facts be as alleged, and we must assume them to be true on demurrer, the appellants had incurred the expense of having obtained a license from the State, the expense of renting a building in which to do business, and in geting ready to do business. Notwithstanding these facts, they could not have compelled the council to grant them a license to retail liquors.
We assume the council regarded them as suitable persons to engage in the business of retailing liquors, or it would not have made the order to grant the license. Having reached the conclusion to grant the license, it was wrong and illegal for them to demand a larger fee than $800, as the law-making branch of the government had declared that to be the maximum amount to be demanded. When the demand was made for $750, the appellants were confronted with a condi*570tion which compelled them to sustain a loss. If they refused to take the license on the condition imposed, then the expenses of the State license, the rent of the premises, and the expense, of getting ready to do business was a total loss to them. If they paid $450 in excess of the amount which the council'had the right to demand, then their apparent loss was an amount equal to the sum illegally demanded.
Presumably in the exercise of their judgments as to the best way to extricate themselves from a bad situation, forced upon them by the illegal conduct of the council they determined to protest and pay.
We believe the facts of this case remove it from that class of cases where a recovery is denied because the payments were voluntary.
The conduct of the council in demanding the illegal sum was such oppression that, in our opinion, it can not be said that the payment of the excess of $800 was voluntarily made.
If the facts of this case were substantially the same as those in Tyler v. Smith, 18 B. M., 799, we would hold the payment was voluntary, and that the action could not be maintained.
In reaching the conclusions we have in this case, we have not failed to consider the ndjudged cases of this court wherein questions of voluntary payments were involved.
The judgment is reversed, with directions that the demurrer to the petition be overruled, and that further proceedings conform to this opinion.