Shirley v. City of Waukesha

| Wis. | Feb 21, 1905

Eebwxn, J.

Upon the undisputed evidence in this case the payment of assessment against plaintiff’s property must be regarded as a voluntary payment with full knowledge of the facts upon which such assessment was made. It appears that the board of public works proceeded under the charter to make the improvement in question by authority of the com,mon council, and filed its report as required by law, which showed assessment of benefits against plaintiff’s property. Subsequent proceedings were had in accordance with the charter, and notice duly given to all parties interested of the meeting of the board to hear objections to the assessment of benefits, and upon due notice and hearing the assessment of benefits, including the assessment against plaintiff’s property, was confirmed. The report of the board of public works and proceedings thereon were open to inspection by plaintiff and all parties interested. The street was improved, and the certificate provided for by the charter of defendant city issued to> the contractor who performed the work. Notice was given to property owners that, unless they paid such certificates, bonds would be issued at the expiration of thirty days. The agent of plaintiff, who had charge of her property, paid the assessment for plaintiff without any protest or objection. No evidence of want of notice was offered upon the trial. Upon the undisputed facts the plaintiff must be deemed to have had notice of all the proceedings in making the improvement and assessing the benefits and damages.

In the light of the evidence in this case we must hold that plaintiff paid the assessment in ■ question voluntarily, and should be charged with knowledge of the proceedings of the board of public works. Babcock v. Fond du Lac, 58 Wis. 230" court="Wis." date_filed="1883-09-25" href="https://app.midpage.ai/document/babcock-v-city-of-fond-du-lac-6604138?utm_source=webapp" opinion_id="6604138">58 Wis. 230, 16 N. W. 625. It is well settled tbat where one voluntarily pays money upon a claim with full knowledge of the facts upon which such claim is founded he cannot recover the money back on the ground that such claim was unenforceable. 22 Am. & Eng. Ency. of Law (2d ed.) 609, and cases cited; Gage v. Allen, 89 Wis. 98" court="Wis." date_filed="1894-12-11" href="https://app.midpage.ai/document/gage-v-allen-8184703?utm_source=webapp" opinion_id="8184703">89 Wis. 98, 61 N. W. 361; Custin v. Viroqua, 67 Wis. 314" court="Wis." date_filed="1886-11-23" href="https://app.midpage.ai/document/custin-v-city-of-viroqua-6605378?utm_source=webapp" opinion_id="6605378">67 Wis. 314, 30 N. W. 515. And this general doctrine applies to the payment of taxes. lienee taxes voluntarily paid, in the absence of fraud, misrepresentations, duress, or coercion, cannot be recovered back. Little v. Bowers, 134 U.S. 547" court="SCOTUS" date_filed="1890-04-07" href="https://app.midpage.ai/document/little-v-bowers-92755?utm_source=webapp" opinion_id="92755">134 U. S. 547, 10 Sup. Ct. 620; Railroad Co. v. Commrs, 98 U.S. 541" court="SCOTUS" date_filed="1879-02-18" href="https://app.midpage.ai/document/railroad-co-v-commissioners-89900?utm_source=webapp" opinion_id="89900">98 U. S. 541; Babcock v. Fond du Lac, supra; Rutledge v. Price Co. 66 Wis. 35" court="Wis." date_filed="1886-04-06" href="https://app.midpage.ai/document/rutledge-v-price-county-6605165?utm_source=webapp" opinion_id="6605165">66 Wis. 35, 27 N. W. 819; Powell v. St. Croix Co. 46 Wis. 210" court="Wis." date_filed="1879-01-15" href="https://app.midpage.ai/document/powell-v-board-of-supervisors-6602755?utm_source=webapp" opinion_id="6602755">46 Wis. 210, 50 N. W. 1013.

From this well-settled doctrine.it is clear that the plaintiff could not recover in an action at law the money paid to the city clerk of defendant city upon the assessment against her property. It is equally clear that she cannot maintain the present action for reassessment, which is based upon the theory of reducing or extinguishing the assessment of benefits, since she could not profit by such reduction, having voluntarily paid the whole amount of the assessment. The litigation, therefore, in any event, would prove fruitless, and the plaintiff has no cause of action.

From the view we have taken of this case it becomes unnecessary to consider other questions discussed by counsel.

By the Court. — The judgment of the court below is reversed, and the cause remanded with directions to dismiss the complaint.