35 Colo. 490 | Colo. | 1906
delivered the opinion of the court:
Counsel for appellant urge as a ground for reversal that the money sought to be recovered was paid voluntarily, and, in support of such contention, rely upon Redmond v. Mayor, 125 N. Y. 632, and Tripler v. Mayor of N. Y., 125 N. Y. 617, which were cases brought to- have certain assessments de
In the 'case at bar, none of those reasons appear; but, on the contrary, at the time the payments set out in the first and second causes of action were
In these cases, the question at issue was the same as in the case at bar, to wit: whether a party who had paid an assessment for the benefit of his property by the construction of a sewer could, after such assessment had been adjudged illegal and had, for that reason, been set aside, recover the money so paid. The court, while recognizing the general rule that where a party voluntarily pays a tax assessed upon his property he cannot maintain an action to recover the same, held that this rule is not applicable where an assessment like the one in question has been set aside by judicial decision. In the former case, Beasley, chief justice, declares:
“Had this suit been brought upon the payment of the tax, and before any change in the situation had occurred, the case would have been the ordinary one presented in the reports and ruled by the' decisions. But that is not so ; there is a new element here, and that is, the tax which was paid has been set aside.*495 The consequence is, the payment has nothing, either in theory or in fact, to rest upon.”
We think the judgment of the court below is supported by the rule announced in these latter cases, and is in accordance with the principles of common honesty. It is therefore affirmed.
Decision en banc. Affirmed.