#### Marine Company, Respondent, vs. City of Milwaukee, Appellant.

*November 1*

November *19, 1912.*

*Taxation: Recovery of illegal “tax:’' Special assessments not covered by statute: Money had and received: ’When - action will not lie.*

1. In sec. 1164, Stats. (1898), — providing for an action by tbe taxpayer to recover any unlawful tax levied and collected from bim, — tbe word “tax” relates only to general taxes and not to special assessments.

2.. No common-law action lies against a city to recover, as for money bad and received, tbe amount of a special assessment ppid un*240der protest, where before the action was commenced the city treasurer had, pursuant to law, paid over the amount so collected to the holder of the improvement certificate.

3. The basis of a common-law action for money had and received is not only the loss occasioned to the plaintiff on account of payment of the money, but also the conséquent enrichment of the defendant by reason of having received the same.

Appeal from a judgment of the circuit court for Milwaukee county: Okeeut T. Williams, Circuit Judge.

*Reversed.*

Action under sec. 1164, Stats. (1898), to recover the sum of $286.11 paid the defendant city, under protest, for a special assessment against plaintiffs property, which assessment, it' is claimed, was void for certain irregularities therein not here necessary to specify. Sec. 1164 is as follows:

“Any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, city or-village may have and maintain 'an action against such town, city or village for the recovery of all money so unlawfully levied and collected of him. And every such action to recover back any such money hereafter paid shall be brought within one year after such payment and not thereafter; and in case any such town, city or village shall have paid a judgment recovered in ■any such action, after having paid over to the county treasurer the state and county tax levied and collected as part of such unlawful tax, such town, city or village shall be credited by the county treasurer, on the settlement with the proper treasurer for the taxes of the ensuing year, the whole amount of such state and county tax so paid into the county treasury; and the county treasurer shall also be allowed by the state treasurer the amount of state tax so illegally collected and paid in his settlement with the state treasurer next after the recovery of such judgment and collection thereof; and if any part of such unlawful tax shall have been paid over to any school district before the payment of such judgment such town shall charge the same to such district, and the town clerk shall add the same to the taxes of such school district in the next annual tax; provided, however, that no action shall be maintained under the provisions of this section unless it shall *241be made to appear to tbe court that tbe plaintiff bas paid more-than bis equitable share of sucb taxes.”

A special assessment certificate was issued to tbe contractor pursuant to sec. 13 of cb. VII of tbe city charter. Said section provides that tbe certificate may be paid to tbe city, treasurer; that tbe city treasurer shall receive tbe amounts paid on sucb certificates and bold tbe same for tbe benefit of tbe owners thereof, and sucb owners shall be entitled thereto on producing and surrendering tbe certificate to be canceled. Plaintiff paid tbe sum in question on tbe 29th day of January, 1910. On tbe 17th day of February of tbe same year tbe city treasurer paid tbe amount to tbe bolder of tbe certificate, who delivered it up to be canceled pursuant to tbe charter provision. This action was begun January 11, 1911. At tbe close of tbe plaintiff’s case tbe defendant moved, alternatively, for a nonsuit, or, if tbe court was of tbe opinion that tbe defendant was not .entitled to a nonsuit and that tbe tax and tbe assessment upon which tbe tax was paid were either of them void, for a reassessment under tbe provisions of sec. 1210&, 1210e, 1210/, and 1210gr of tbe Statutes. Tbe motions were denied by tbe court. Tbe defendant offered no evidence,' and tbe court, after making certain findings of fact relative to tbe assessment, held (1) that tbe defendant altered and changed tbe grade of tbe street in question without legal authority, and assessed tbe sum of $286.11 against the real estate of tbe plaintiff, for tbe work done in consequence of sucb change of grade, without legal authority so to do; and (2) that plaintiff is entitled to judgment against tbe city for said sum of $286.11 with interest, together with tbe costs of tbe action. Prom a judgment entered accordingly tbe defendant appealed.

Eor tbe appellant there was a brief by *Darnel W. Doom,,*city attorney, and *Olifton Williams,*special assistant city attorney, and oral argument by *Mr. Williams.*

*242For tbe respondent tbe cause was submitted on tbe brief of *Frank B. Van Valkenbwrgh.*

ViNJE, J.

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 *243to general taxes and not to special assessments, for careful provision is made enabling the town, city, or village to reimburse itself for any moneys it may have paid in case it shall be determined in the action that the plaintiff has been compelled to pay a greater tax than in justice and equity be should have paid. That the word “tax” as used in sec. Í164 relates to a general tax only and not to special assessments is made practically certain by sec. 1164a, which provides that if upon the trial of an action under the preceding section it shall appear that the assessment upon which the taxes were so paid is void, the court, before entering judgment, shall continue the action for a sufficient time to permit a reassessment. It further prescribes that the validity of the reassessment provided for may be attacked and determined and subsequent reassessments may be had as provided by sec. 1210b; provided, that such reassessment shall in all cases be made by the *assessor*of the assessment district wherein the property to be reassessed is situated. Sec, 1210b applies only to the reassessment of general taxes, and the fact that the assessor is to make the reassessment in case plaintiff prevails in the action shows conclusively that the statute applies to general taxes only, for, confessedly, the legislature could not have intended that the assessor of the assessment district should make a reassessment of special improvement taxes. Our statutes relating to the reassessment of special assessments provide that the proper authorities empowered to make the original assessment shall also make the reassessment. No case has come to our notice where it is the duty of the assessor to make special •assessments. ‘

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 *244him.” It is obvious that tbe word “tax” as here used could relate only to general taxes, for towns do not levy special assessments against property within their borders. The words “city” and “village” first appeared in ch. 334 of the Laws of 1818, but there is nothing in that chapter to indicate any intention to broaden or extend the meaning of the term “tax” as previously used. All actions heretofore brought under sec. 1164, so far as we have been able to ascertain, have related to general taxes. See *Keystone L. Co. v. Pederson,*93 Wis. 466, *67*N. W. 696; *Day v. Pelican,*94 Wis. 503, 69 N. W. 368; *Wells v. Western P. & S. Co.*96 Wis. 116, 121, *70*N. W. 1071; *Bonnin v. Zuehlke,*122 Wis. 128, 134, 99 N. W. 445. It is evident, therefore, from the section in question and from the cognate statutes of which it forms a part, that the word “tax” as used therein does not include or relate to special assessments, and that no action under the statute can be maintained to recover money paid for such assessments.

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 *245be compelled to turn over to plaintiff a portion or tbe whole of tbe amount in controversy. Tbe basis of a common-law action for money bad and received is not only tbe loss occasioned to tbe plaintiff on account of tbe payment of tbe money, but tbe consequent enrichment of tbe defendant by reason of having received the same. 27 Cyc. 869; *Limited Inv. Asso. v. Glendale Inv. Asso.*99 Wis. 54, 74 N. W. 633; *Johnston v. Charles Abresch Co.*109 Wis. 182, 85 N. W. 348; *Glendale Inv.*Asso. *v. Harvey L. Co.*114 Wis. 408, 90 N. W. 456; *Douglas Co. v.*Sommer, 120 Wis. 424, 98 N. W. 249; *J. V. LeClair Co. v. Rogers-Ruger Co.*124 Wis. 44, 102 N. W. 346. It follows, therefore, that neither an action under tbe statute nor a common-law action for money bad and received lies against tbe city, and that the court should have' granted tbe motion for a nonsuit.

*By the Court.*— Judgment reversed, and cause remanded with directions to dismiss tbe complaint on tbe merits.