delivered the opinion of the court:
The Board of Highway Commissioners of the town of Bloomington, in McLean county, brought an action of assumpsit, based on the common counts, against the city of Bloomington to recover from the said city the amount of taxes collected on property in Bloomington township located within the corporate limits of the city of Blooming-ton and paid over by the collectors of revenue to the city of Bloomington under the third proviso.of section 16 of the Road and Bridge law, as amended in 1909. The taxes in question were levied under sections 13 and 14 of the Road and Bridge law in 1909 and were collected and paid over to the city in 1910. The Board of Highway Commissioners of Bloomington township levied the limit of thirty-six cents fpr road and bridge purposes under section 13 of the Road and Bridge law and made a certificate that a contingency existed in said township requiring a greater levy than thirty-six cents, and obtained the consent of the board of town auditors and the assessor for an additional levy of twenty-five cents under section 14 of the Road -and Bridge law, as amended in 1909, which said levies were spread upon the property of the township and collected with other taxes by the collectors. By the third proviso of section 16 of the Road and Bridge law, as amended in 1909, it is enacted “that in all cities of twenty thousand inhabitants or upwards, all of said tax required to be levied and collected under said sections 13 and 14, within the limits of such city, shall be paid over to the treasurer of such city for city purposes.” The city of Bloomington having a population of more than twenty thousand inhabitants, under said proviso the taxes in question were paid over to the treasurer .of said city. The money was received by the city in two installments, $24,670.81 being paid over May 3, 1910, and the sum of $16,316.67 being paid on August 15, 1910. The city appropriated the said funds by ordinance and used the same for the repair and maintenance of its streets. At the December term, 1910, of this court, in the case of People v. Fox,
The appellant contends that this suit was improperly brought in the name of the commissioners of highways; that the suit should have been brought either in the name of tire town, under paragraph 46 of chapter 139 of Hurd’s Statutes of 1909, or in the name of the township treasurer, for the reason that the money, being public funds belonging to the township, would be payable to such treasurer. There is no force in this objection. The township is the beneficial plaintiff and real claimant of the money sued for. A recovery of a judgment and a satisfaction thereof in the present action would be a bar to any future action, either in the name of the town or any other agent thereof, for this cause of action. Aside from this, we do not find that this question was raised in any way in the lower court. Appellant has therefore waived-the right to raise it here.
Appellant next contends that sections 13 and 14 of the Road and Bridge law are unconstitutional as applied to a situation such'as exists here, for the reason that there is no provision in said sections exempting property in that portion of the township which is embraced within the limits of the city of Bloomington. In support of this contention appellant’s argument is that, the city of Bloomington being required to levy and collect taxes to maintain the streets and bridges within the city, the property of its citizens within that portion of the city embraced within the township of Bloomington cannot again be taxed by the township for the purpose of maintaining the roads and bridges of the township, and that to do so violates section 1 of article 9 of the constitution, in that it subjects the property in one part of the city to double taxation for one and the same purpose, and that said sections of the statute violate the principles of uniformity in its application to townships having a city or village partly or wholly in such townships. The question thus raised has not been'heretofore decided by this court in respect to the particular statutes here involved, but questions involving the principle which must here control have frequently been before this court. Cooley, in his work on Taxation, (p. 238,) says: “Taxing districts may be as numerous as the purposes for which taxes are levied. The district for a single highway may not be the same as that for a school house located upon it. It is not essential that the political districts of the State shall be the same as the taxing districts, but special districts may be established for especial purposes, wholly ignoring the political divisions. A school district may be created of territory taken from two or more townships or counties, and the benefits of a highway, a levee or a drain may be so peculiar that justice will require the cost to be levied either upon part of a township or county or upon parts of several such subdivisions of the State.”
The principle of uniformity is not violated by levying taxes by two overlapping municipalities on the same property, even though it be for a similar purpose. (Baird v. People,
The same principle was involved in the case of Wilson v. Board of Trustees,
The court did not err in refusing to hold appellant’s proposition of law reciting that sections 13 and 14 of the Road and Bridge law were unconstitutional.
Appellant next contends that there can be no recovery in this action because there is no privity between the parties to the suit and no basis in the evidence for the finding that the money in question was received by appellant for the use of appellee. There is no dispute about the facts. In point of fact, at the time the money in question was collected and paid over it was doubtless supposed by all parties that it properly and legally belonged to the appellant. There was nothing in the nature of a contract relation in fact between the appellant and the appellee in respect to these funds. If appellee can sustain'the recovery it must be upon some theory other than that there was a privity in fact, resulting from a contractual relation. The facts here present the question fairly whether an action in assumpsit can be maintained under a count for money had and received to the use of the plaintiff in the absence of any contractual relation whatever between the parties, and where the only evidence in support of such action is proof of the fact that money has been paid to defendant which legally belonged to and ought to have been paid to the plaintiff. Appellant answers this proposition in the negative, for the reason that there is no privity of contract between the parties. To this the appellee replies that no privity is required, other than that implied by the law, where one person has money in his hands, however received, which ex aequo et bono he ought to restore to the owner.
There is some confusion in the books in regard to the scope of the remedy in assumpsit for money had and received. Some courts have fallen into error by supposing that this action can only be maintained where there is an express contract, or a contract implied in fact from the situation or conduct of the parties. By the common law the word “contract” included all rights which could be enforced by any of the actions ex contractu. By the common law classification every contract was either express or implied. Under these two heads were classified every form of obligation which was by the common law enforcible by an action ex contractu. Taking from the general mass all of the rights growing out of express contracts which were enforcible by actions ex contractu, we have left a miscellaneous group of rights which are enforcible by actions ex contractu, which are usually treated under the classification of implied contracts. At the present time that great body of rules of the common law which defines the rights, duties and obligations of the citizen, known as substantive law, is regarded as the principal and most essential part of the law, while in theory, at least, the adjective law of pleading, practice, evidence, remedies and procedure is secondary, and is designed merely to secure and enforce in an orderly manner the substantive law. In the earlier stages of the common law the procedure was the principal and the substantive law was in reality a mere appendix or supplement. The tenacity with which the ancient common law courts clung to the form of action and remedy has given rise to the creation of numerous fictions in the substantive law in order to fit an inexorable remedy to a new situation. The action of assumpsit was devised for the purpose of recovering damages for the non-performance of a parol or simple contract. (3 Johns. Cases, 60.) The word is derived from the Latin assumere, meaning to assume or to undertake. (Bouvier’s Law Dict.) In the law of contracts the word was understood as an undertaking, either express or implied, to perform a parol agreement. An “express assumpsit,” by the common law, was “an underfaking made orally, by writing not under seal or by matter of record, to perform an act or to pay a sum of money to another.” An “implied assumpsit” was defined to be “an undertaking presumed, in law, to have been made by a party from his conduct, although he has not made any express promise.” (Bouvier’s Law Dict.) There were two general forms in the action of assumpsit. “Special assumpsit” was brought upon an express contract or promise, while “general assumpsit” was brought upon an implied contract. (2 Smith’s Leading Cases, 14.)
It will thus be seen that there is a general agreement between a special assumpsit and an express contract, and general assumpsit and an implied contract. As ordinarily understood, the only difference between an express contract and an implied contract is, that in the former the parties arrive at their agreement by words, either oral or written, sealed or unsealed, while in the latter their agreement is arrived at by a consideration of their acts and conduct. (2 Page on Contracts, sec. 771.) In both of these cases there is, in fact, a contract existing between the parties, the only difference being in the character of evidence necessary to establish it. A familiar illustration of an implied contract is, where one person, in the absence of any express agreement, renders valuable services to another which are knowingly accepted by such other, the law will imply a promise to pay á fair and reasonable compensation for such services. (McFarlane v. Dawson,
After subtracting express contracts and contracts implied in fact, there is still left another large class of obligations, to enforce which the action of general assumpsit is a well established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles, derived from the civil law. This obligation was under the civil law designated “quasi-contractus.” Stated as a civil law principle, it was “an obligation similar in character to that of a contract, but which arises not from an agreement of parties but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obligation springing from voluntary and lawful acts of parties in the absence of any agreement.” (Howe’s Studies of Civil Law, 171; Morey on Roman Law, 371.) In quasi contracts the obligation arises not from consent, as in the case of contracts, but from the law or natural equity. “The term was not found in the common law but it has been taken by writers upon the common law from the Roman law and may be considered now as quite domesticated, even to the extent of being used as the title of á very valuable common law text book,—Keener on Quasi Contracts.” (Bouvier’s Law Dict.) Page, in his late work on Contracts, (vol. 2, p. 1166,) in discussing the term “quasi contract” says: “The term ‘quasi contract,’ while but little used in law, is a term of considerable antiquity in English law. The term ‘quasi ex contractu1 is used in Bracton to include ‘agency, wardship, the division of common property, the distribution of an inheritance, an action arising out of a testament, a suit to require a sum paid not due, and such like.’ ”
The class of obligations now under consideration, and which are treated in works on contracts as “contracts implied in law,” or quasi contracts, are recognized and enforced by common law courts by means of a general assumpsit. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. (Pract v. Daniels,
Where A receives money from X which belongs to B, without B’s consent, the general rule is that in the absence of special circumstances B may recover such money from A. (United States v. Bank,
The facts in the case at bar are, that appellant received from the collectors of taxes the money here sought to be recovered. At the time this money was paid over by the collectors and received by appellant there was in the statute a provision which, had it been valid, would have settled the right of appellant to this money. The statute, however, under which this money was received by appellant has been declared unconstitutional. To be sure, the decision of this court declaring said statute unconstitutional was rendered after the money had been paid over to appellant, but this circumstance, does not affect the legal status of the parties in the least. The rule is universal that an unconstitutional law confers no right, imposes no duty and affords no protection. It is in legal contemplation as though no such law had ever been passed. (Norton v. Shelby,
Appellant has cited and relies on four decisions of the Appellate Court of this State to sustain the proposition that an action for money had and received cannot be maintained in any case unless there is privity in fact between the parties. These cases are Town of Rushville v. President of Rushville,
There is nothing in the cases of Trumbull v. Campbell,
Appellant - contends that the court erred in allowing a recovery for the taxes levied and collected under section 14 of the Road and Bridge law because of certain alleged defects in the certificate of the highway commissioners respecting the existence of a contingency. Conceding, for the sake of argument, that the certificate was defective under the decisions of this court, we are of the opinion that appellant i? not in a position to take advantage of such defect. If the tax-payers saw proper to waive, any objection that might have been made by them to the form of the certificate and voluntarily paid the taxes and such taxes came into the treasury of appellant, it cannot now be heard to say that said taxes were illegally levied. Yates v. Royal Ins. Co.
The appellant contends that the court erred in allowing $1384.93 interest upon the amount of money paid to the city. In our opinion this error is well assigned. There is nothing in this record to impeach the good faith of appellant in the receipt and expenditure of this money. While it did not belong to the city, the existence of the third proviso in section 16 of the Road and Bridge law was an apparent authority for the receipt of this money by the city. There is no element of tort connected with the receipt or conversion of this money nor has there been any vexatious delay in paying it over to appellee. There is therefore no legal ground upon which the claim for interest can be sustained. Appellee in its brief virtually concedes- the error in this respect, and suggests that if this court should conclude that the interest item was improperly included in the judgment a remittitur of that amount will be made. The amount of the judgment below was $30,037. The amount is not in question except as to the item of interest. A remittitur of $1384.93 will be considered as entered by appellee and the judgment below affirmed for $28,652.61.
Judgment affirmed in part.