Montana Attorney General Opinion 15-295

Opinion No. 295 Licenses--Refunds-Fees-Wholesalers. HELD: In the absence of statute a license fee paid to state may not bp refunded where .the license is legal and i>; paid ,'oluntary without protest, and where the failure to furnish the re- quired hond for license was no fault of the >;ta te hut ,,'holly the fa ult of the licensee. August 9, 1933. You have submitted the following: "Referring to Chapter 164 of the 1933 Session La ws we ha "e in >;everal case~ receivefl applications accompanied by the proper fees and ha"e, in order not to work a hardship on anyone, allowed the applicant to continue business pend- ing the filing of the bond a nd the issu- ing of the license. Later, the applicant hns been unable to furnish the bond nnd is asking for a refund of the fee. Are we permitted to do this, especially in view of the fact that the party tI-ans- acted business for some time after fil, ing the application." I find no statute in Montana author- izing the refunding of license fees ex- cept where they are paid under protest as prodded in Section 2409, n. C. M. 1921. In Roberts et al. v. City of Boise, 132 Pac, 306, where the cases are re- viewed, it was said: "The general rule recognized by the authorities is that 'A license tax voluntarily paid cannot be recovered back unless there is a stat, ute which expressly authorizes such re- coven'.' 3 ;\fcQuillin. l\lunic, Corp .. Sec. loon; 1 'Woollen & Thornton on Intox. Liquors, Sec. 497; .Joyce, Intox. Liq- uors, Sec. 330." The collection of the license fee pro- yided in Chapter 164 was legal. The payment thereof was voluntary. The failure to furnish the required bond was not through any fault of the state hut was wholly due to the failure of the licensee. "\Vhere the fee or tax which has ·heen paid was not illegal or unauthorized it cannot be recovered hack, irrespecth'e of whether its pay- ment was voluntary or involuntary, and although the method of its collection was irregular. • • * A sum deposited with an application for a license may he recm'ere<1 on the failure or refusal to issue a license, without any fault OPINIO~S OF THB ATTOR~EY GE:\,ERAL 201 on tIl(' pa It of the applicant." ::Ii C .. T. 255. (See also Brush '-. Citr of Helena. ,14 Mont. 2M. 16!) Pac. 285; 3 l\IcQuil- lin, l\Iunic. Corp. 1009, ~ote: Volume {l Opinion of Attorney General, p. 2S6.) It is therefore my opinion that a li- cense fee paid under the circumstances aboye mentioned. the same being legal. paid "oluntarilr without protest. and the failure to furnish the rcquired hond for' license being no fault of the state hut ",holly the fault of the Iic"ensee. there ean 'be no reco,-ery of the Iicpnsp fee.