State ex rel. Pabst Brewing Co. v. Kotecki

163 Wis. 101 | Wis. | 1916

SiebecKER, J.

See. 1164, Stats., makes provision for tbe filing of a claim against a city by a taxpayer wbo is aggrieved by tbe levy and collection of any unlawful tax assessed against him. It also authorizes tbe common council, if tbe tax for which claim is made is unlawful and tbe conditions prescribed by law for tbe recovery of illegal taxes have been complied with, to allow such claim, and provides that tbe treasurer shall pay the amount of tbe claim allowed as excessive and illegal. Tbe allegations of fact in tbe relation show that tbe common council took tbe usual and required steps for allowance of claims and that tbe city has tbe necessary funds on band to pay it. It is clear that tbe common council acquired jurisdiction of tbe matter. It is contended that tbe defendant is justified in bis refusal to audit tbe claim and to countersign tbe city order upon tbe ground that tbe plaintiff voluntarily paid tbis tax. It is urged that the plaintiff at tbe time of payment had either actual or constructive notice of tbe mistake of tbe city officers in making up tbe assessment roll and in levying and collecting the tax. Tbe facts alleged show that tbe plaintiff bad no actual notice of the mistake, nor do the facts alleged permit of charging plaintiff with constructive notice of the mistake. It is obvious that the excessive tax was the result of a purely clerical error of the assessor, who had no intention to insert these two items twice each on the assessment roll. The plaintiff relied on the roll as found upon examination before the assessor attempted to change it and had a right to presume that it was not changed thereafter. The claim that plaintiff must act at its risk in assuming the correctness of the computation made by the taxing officers in extending the amounts of its tax on the tax roll is not well founded. It would be a most unjust imposition on taxpayers to require of them to search the books to ascertain the correctness of the entries and the computation made in extending the tax on the roll and in making statements to taxpayers at the time of payment. Harrison v. Milwaukee, 49 Wis. 247, 5 N. W. 326; Gould v. Sullivan, 84 Wis. 659, 54 N. W. 1013; Gould v. Killen, 152 Wis. 197, 139 N. W. 758; Dolman v. Pitt, 109 Mo. App. 133, 82 S. W. 1111. It is clear that plaintiff paid this unlawful tax bill without any notice of the mistake. The facts alleged show clearly that the payment of this amount was the result of a mistake of fact due to an error committed by the city officers, and plaintiff’s payment thereof as a lawful tax constitutes, under the circumstances, a fraud, which entitles plaintiff to recover. The language of the court in the case of Pacific Coast Co. v. Wells, 134 Cal. 471, 66 Pac. 657, characterizes the transaction in apt terms: “It was an assessment made by the assessor in changing the footings of petitioner’s assessment It was paid without consideration, and the city and county have no right to it. Petitioner has paid all its just taxes, and this sum in addition. . . . The board of supervisors [here the common council], representing the county [here the city], after investigation, made an order to correct it. . . . It surely would be in violation of honesty and fair dealing” for the city to keep it. The plaintiff has a legal right to have this amount refunded, which is made enforceable by action under the provisions of sec. 1164, Stats.

It is considered there is no merit to the following claims that the court erred in refusing to qua§h the writ on these grounds: (a) that the report of the committee was not properly signed or countersigned by the comptroller; (b) that there were no funds on hand out of which to pay the order — the facts allege to the contrary; (c) that plaintiff was guilty of laches — the allegations show plaintiff acted diligently; and (d) that the comptroller is presumptively' acting under the advice of the city attorney.

The statute provides that “Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter.” The allegations of fact in the relation show plainly that the plaintiff proceeded properly within the year and fulfilled the calls of the statute.

By the Gourt. — The order appealed from is affirmed.