50 Iowa 240 | Iowa | 1878
objection thereto. If such is the fact, and the plaintiff knew that it was the intention of the council to assess the cost upon abutting lots, it appears to us that he should be regarded as estopped. Weber v. San Francisco, 1 Cal., 455; Kellogg v. Ely, 15 Ohio State, 64. It is insisted by the plaintiff that this cannot be so, because he had no power to enjoin the improvement. It may be true that the city had the right to make the improvement if it saw fit, and that the plaintiff could not
The plaintiff insists, however, that he did object. He insists that he paid under protest, and that that is sufficient. If he made a payment under protest, before the completion of the work, such protest we think might be deemed sufficient objection to the further prosecution of the work at the exjjense of his lot. What, then, is the fact as to payment under protest ? The evidence upon the point is conflicting, and the judgment of the court must be assumed to be correct so far as this point is concerned. It seems to be undisputed that some objection to the work was communicated to the contractor, but that was not a communication to the city.
Holding, then, that the lot was properly chargeable for work done without the plaintiff’s objection, after he had knowledge that it was the intention of the council to assess it, we have to inquire when he obtained such knowledge. He did not obtain it from the resolution by which the work was ordered, for that, as we have seen, did not provide for the assessment of the cost upon the abutting lots. The only evidence as to when he obtained the knowledge is the testimony of the plaintiff himself. He says: “The first I was aware the improvement was being made by special assessment was in December, 1871, when the authorities presented a bill for the first assessment. ” Prior to that time the plaintiff cannot be said to have consented to the work being done at the expense of his lot. The first bill, it appears, was for twenty-four dollars and thirteen
The plaintiff relies upon section 24, title 32, Revised Ordinances, which is as follows: “In all cases when any person shall pay any taxes, interest or cost, or any portion thereof, that shall hereafter be found to be erroneous or illegal, whether the same be owing to erroneous or improper assessment, to improper or irregular levying of the tax, or to clerical or other errors or irregularities, the city council shall, upon being satisfied of such error, direct the treasurer to refund the same to the tax payer.”
It is not expressly provided that an illegal tax shall be refunded only in case it is paid under protest, and we see no reason for grafting such a provision upon the ordinance by construction. The only doubtful question is as to whether the word taxes, as therein used, should be construed as covering special assessments. As showing that it should not, the defendant cites Dillon on Municipal Corporations, §§ 599 and 602, and Cooley on Taxation, 147. This court, however, has already given a construction to the ordinance in a case where the legality of the same assessment was involved. Tallant v. The City of Burlington, 39 Iowa, 543. It appears to us, then, that the plaintiff is entitled to recover at least the amount of the bill first paid. Eor error in disallowing it the case is
Reversed.