Harrison v. City of Milwaukee

• Decision Date: 20 April 1880
• Citation: 5 N.W. 326,49 Wis. 247
• Parties: HARRISON v. THE CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

49 Wis. 247

5 N.W. 326

HARRISON

v.THE CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Filed April 20, 1880.

Appeal from circuit court, Milwaukee county.

Frank B. Van Valkenburgh, for respondent.

D. H. Johnson, for appellant.

COLE, J.

There can be no doubt that the plaintiff's lots could not legally be assessed for more than one-half 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 80 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 wilfully 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, and 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 assessment 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, will the action lie? The learned counsel for the city insists that it will not, because, first, the facts stated, as he claims, show that the plaintiff voluntary 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 Co. 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 assessmentwith full knowledge of the facts as to the real cost of furnishing and laying the water pipe in front of her lots. Indeed, the inference from the allegations is that she acted under a mistaken belief upon the subject, which was caused...