111 Ky. 56 | Ky. Ct. App. | 1901
Opinion op the court by
Affirming.
On July 13, 1891, the general council of the city of Louisville passed an ordinance for improving the streets of the city with vitrified brick, which contained, among others, this provision: “The contractor shall guaranty the performance of his contract according to this ordinance, and the pavement therein specified and the material composing the same shall be kept in good repair for a period of
In Underwood v. Brockman, 34 Ky., 318 (29 Am. Dec., 407); Ray v. Bank, 42 Ky., 514 (39 Am. Dec.) 479, and a number of subsequent cases it has been held that, where money is paid under a clear mistake of law or fact, which in equity and good conscience should not be retained by the party receiving it, a recovery may be had. This may be regarded the settled law of this State, although the rule, so far as mistakes of law are concerned, is denied in many other States. But, while this rule has been consistently maintained by the court, it has not been applied ■to taxes or public dues which have been voluntarily paid where they were only collectible by action. Thus, in City of Louisville v. Zanone, 58 Ky., 151, the plaintiff sought to recover from the city money he had paid to a contractor for the improvement of the street in front of his property, on the ground that the ordinance under which the improvement was made had been passed by only one board of the general council, and was therefore invalid. It was held that, as he had voluntarily paid the assessment, he could •not recover. In Hubbard v. Hickman, 67 Ky., 204 (96 Am. Dec., 297), the plaintiff sued1 to recover municipal taxes which he had paid for ten years. It was held that the law does not imply a promise on the part of the city to make • restitution for taxes levied and paid under a mistake of law. This ruling was followed in Moore v. Bath Co. Ct., 70 Ky., 177. In City of Louisville v. Anderson, 79 Ky., 343, a recovery was sought of taxes paid under a; void ordinance. A recovery was had. But the court said: “Where a party is entitled to a day in court, and can litigate the. demand about to be enforced against him, but, instead of doing so, yoluntarily pays it, he is without remedy.