Mahanoy City v. Hersker

Citations

• 231 Pa. 319
• 80 A. 539
• 1911 Pa. LEXIS 841

Syllabus

<p>Fines — Estoppel—Borough ordinance — License fees — Voluntary payments.</p> <p>■ A borough ordinance provided that no theatrical exhibition should be given without a license, with a penalty for each violation, and that the license fee should be $3.00 a day. The proprietor of a theater gave 306 exhibitions on separate days, and the borough demanded a license fee for each day. The demand being disputed, an ordinance providing for the granting of an annual license fee of $100 was duly passed by the borough council and advertised. The proprietor paid this fee to the secretary of council. The burgess vetoed the ordinance, but council by resolution accepted the payment, refusing, however, to issue the license. Demand for the return of the sum was made and refused, the money being paid over to the borough treasurer. The borough then demanded the payment of the $3.00 a day fee, which the proprietor refused to pay on the ground that an annual license fee had been paid. Suit to collect the day license fee was then brought. On appeal the Superior Court affirmed a judgment for the borough whereupon defendant paid to the treasurer $958.22, being the amount of the unpaid license fees and the judgment, interest and costs of the suit. The borough then brought suit to collect a penalty for each day a theatrical exhibition was given without having first obtained a license. Held, that as the borough had retained the $100 and had been at faftlt in having prematurely advertised the ordinance, and the delay in the payment of the $3.00 a day license fee being accounted for by reason of the litigation pending, it was the duty of the borough to return the $100 if it intended to deny the right to give exhibitions in pursuance thereof, and it was, therefore, estopped from making further collections.</p>