151 Wis. 239 | Wis. | 1912
Tbis action is brought under sec. 1164, Stats. (1898), to recover money paid to tbe city, under protest, for a special paving tax assessed on plaintiffs lot. It is claimed that tbe sum, or at least a portion thereof, so paid was really assessed and collected for an illegal change in tbe grade of tbe street and not for paving tbe same. Tbe question arises, Does tbe statute apply to special improvement taxes? Tbe word “tax” is generically broad enough to include special assessments, and whether or not it does so in a statute must be gathered from its context and tbe legislative intent, as ascertained from tbe general scheme of tbe act and tbe cognate acts of which it is designed to become a part. Tbis statute appears under tbe subhead of “Miscellaneous provisions” in that part of cb. 49 relating to tbe assessment and collection of general taxes. It is followed by tbe subhead, “Tbe assessment and collection of special taxes.” It will be observed that the section provides that in case any town, city, or village-shall have paid a judgment recovered in any such action, after having paid over to tbe county treasurer tbe state and county tax levied and collected as part of such unlawful tax, such town, city, or village shall be credited by tbe county treasurer, on tbe settlement with tbe proper treasurer for the taxes of tbe ensuing year, tbe whole amount of such state and county tax so paid into tbe county treasury. It also provides for -a credit to tbe county treasurer by tbe state treasurer of tbe amount of state tax so collected and paid over to tbe state treasurer, and if any part of the unlawful tax shall have been paid to any school district before tbe payment of tbe judgment, such town shall charge tbe same to such district, -and tbe town clerk shall add tbe same to tbe tax of s.ucb school district in tbe next annual tax.' It seems apparent from these provisions that tbe word “tax” used in tbis statute relates only
Sec. 1164, as first enacted in ch. 88 of the Laws of 1870, did not include the words city and village. The act provided (sec. 1): “Any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, may have and maintain his action against such town for the recovery of all moneys so unlawfully levied and collected from
Under many special assessment statutes, as in the present case, the money is collected for the owner of the improvement certificate and is required to be paid over to him upon the presentation thereof to the treasurer of the municipality in which the special assessment tax is levied. It could not have been within the contemplation of the legislature that a taxpayer could maintain an action against a municipality after it had paid the amount of the tax collected to the person entitled to receive the same without any provision for reimbursing itself. In the present case the city treasurer had collected and paid over the money to the holder of the certificate before the action was commenced. Since the city treasurer had paid over to the person entitled thereto the whole of the tax collected, no common-law action for money had and received can be maintained against the city. Such action is founded upon the theory that the defendant has the money which is sought to be recovered, or that he has been enriched by the transaction, so that in equity and good conscience he should
By the Court. — Judgment reversed, and cause remanded with directions to dismiss tbe complaint on tbe merits.