Harrison v. City of Milwaukee

49 Wis. 247 | Wis. | 1880

Cole, J.

There can be no doubt that the plaintiff’s lots could not legally be assessed for more than one-lialf of the cost, as estimated by the board of public works, of furnishing and laying the regular minor water-pipe in front of her lots. It is alleged in the complaint that the entire cost of furnishing and laying the water-pipe during the year 1878 did not exceed the sum of eighty cents per lineal foot, which fact was well known to the board; that the board made a pretended assessment of the benefits to her lots by reason of laying the ■ water-pipe, in and by which they willfully and fraudulently assessed the entire cost of laying the water-pipe against each lot, instead of assessing'only one-half the cost thereof, as by law they were authorized to do, and fraudulently claimed that it cost that sum to lay said pipe; that said assessments were reported to the comptroller and returned to the city clerk, and included in the tax roll for the year 1878; and that the plaintiff was compelled to pay, and did actually pay, to said city the amount of such fraudulent assessments to save her lots from sale, under the mistaken impression and belief, induced by the fraudulent representations made to her by the city officers and board of public works, that the same covered only that one-half part of the cost of said pipe which was properly chargeable to her said lots.

The plaintiff sues the city to recover back the excess thus wrongfully exacted from'her. The question arising on the demurrer is, whether the action will lie. The learned counsel for the city insists that it will not, because, first, the facts stated, as he claims, show that the plaintiff voluntarily paid the amount assessed against her lots. A voluntary payment, he says, of even a void tax cannot be recovered back, though made under protest, unless it was compelled by duress of goods or person, and nothing of the kind is shown in this case. The principle of law is well settled; that if a person, with full knowledge of all the facts, voluntarily pays an unjust claim made upon him, and attempted to be enforced by legal proceedings, he cannot recover back the money as paid by compulsion, unless there be fraud in the party enforcing the claim, and a knowledge on his part that the claim is unjust. Benson v. Monroe, 7 Cush., 125; Forbes v. Appleton, 5 Cush., 115; Clark v. City of Boston, 9 Allen, 393; Taylor v. Board of Health, 31 Pa. St., 73; Powell v. Board of Supervisors of St. Croix County, 46 Wis., 210; Noyes v. State, id., 250; Owens v. Milwaukee, 47 Wis., 461.

In this case it does not appear that the plaintiff paid the assessment with full knowledge of the facts as to the real cost of furnishing and laying the water-pipe in front of her lots. Indeed, tbe inference from the allegations is, that she acted under, a mistaken belief upon .the subject, which was caused or produced by the officers of the city. A payment made under such circumstances, while ignorant of the facts which invalidated the tax, is not a voluntary payment, within the authorities. But the counsel for the city further insists that the plaintiff, at least, was put upon inquiry; that it was her duty, within the rule of the Owens case, to have ascertained the cost of the work before she paid the assessment; and that, failing to do this, she cannot recover back the excess illegally exacted. We do not, however, think the plaintiff was bound to use any such diligence to ascertain the fact, especially in view of the averment that she was actually misled by the fraudulent representations by the officers of the city, which were .made to her, that the assessment only covered one-lialf of the cost of the pipe properly chargeable to her lots. This averment takes the case out of the rule of the Owens case.

But, secondly, the same counsel insists that, uuder the provisions of the charter, the plaintiff might have appealed from the assessment, if she felt aggrieved thereby, and that this was her only remedy. Conceding the position to be correct, that section 19, sub-ch. X of ch. 181, Laws of 1874, gave the plaintiff the right to appeal from the assessment to the circuit court of Milwaukee county within twenty days after the completion of the publication of the notice by the comptroller, as in case of appeals from the decisions of the common council in respect to assessments of benefits for street improvements, still we do not think this was her exclusive remedy. The plaintiff did not know of the mistake or fraud in the assessment even when she paid her tax, and .this was long after the right to appeal had expired. As we have said, the complaint states that she was misled by the fraudulent representations of the city officers as to the cost of the pipe; and in a case of that kind we hardly think the-legislature intended to deprive a party of all other remedy except the appeal under the charter. These allegations in respect to fraud may be disproved on the trial, but we now have to assume, that they are well founded in fact. And we should be unwilling to sanction the doctrine that the lot-owner lost all remedy to correct the wrong inflicted upon him by the fraudulent representations of the city officers as to the actual cost of the work, if he did not appeal under the charter. See Pier v. The City of Fond du Lac, 38 Wis., 470.

It follows from these views that the order of the circuit court overruling the demurrer must be affirmed.

By the Court.— Order affirmed.