O'Malley v. Town of Sebastopol

[33]

BURNETT, J.

The complaint is in two counts, the second being upon an assigned claim. Plaintiff and his assignor, on the first day of October, 1910, and for some time prior thereto, were each the owner of and conducting a saloon business in said town of Sebastopol. Up to the first of August there was in effect an ordinance under the provisions of which the license-fee for the privilege of conducting a saloon business in the town was fifty dollars per quarter, payable in advance upon the first day of January and every three months thereafter.

It appears from the complaint that, upon the sixth day of June, 1910, the said town duly adopted an ordinance fixing the saloon license at one thousand dollars per year and providing that no license shall be issued for a longer or less time than one year and that “all license-fees shall be paid semi-annually in advance one-half on January 1st and one-half on July 1st of each year.” It was further provided that “all ordinances in conflict herewith are hereby repealed in so far as they conflict with this ordinance” and “this ordinance shall be in force and effect on and after the 1st day of August, 1910.”

It further appears from the complaint “that upon the said 1st day of October, 1910, the said defendant, through its officers and agents, did, by means of coercion, "compulsion and duress upon the part of defendant, used and made upon plaintiff, for the purpose of causing him to pay to said town the sum of two hundred and fifty dollars, as a license-fee for the privilege of conducting his said saloon business from the 1st day of October, 1910, to and including the thirty-first day of December, 1910, cause and compel said plaintiff to pay the said sum of $250 to said town of Sebastopol upon the said 1st day of October, 1910, by reason of and as a result of said compulsion, coercion and duress and not otherwise ; and but for such compulsion, coercion and duress said money would not have been paid.

“That said compulsion, coercion and duress upon the part of defendant consisted of the threatened deprivation of plaintiff of his said saloon business in the said town of Sebastopol, if he failed or neglected to pay the said sum of $250 as a condition for the continuance thereof; that said depriva