#### Shirley, Respondent, vs. City of Waukesha, Appellant.

*January 31*

February *21, 1905.*

*Municipal corporations: Special assessments for improvements: Voluntary payment: Reassessment.*

1. In proceedings for the improvement of a street under a city charter, the assessment of benefits having been confirmed upon due notice to all persons interested, and all subsequent steps having been taken in accordance with the charter and upon due notice, payment of the assessment against an abutting lot, made by the owner’s agent in charge thereof without protest or objection, was a voluntary payment, and the money paid cannot be recovered back.

2. A lotowner who has voluntarily paid an assessment of the benefits from a street improvement cannot thereafter maintain an action to set aside such assessment and for a reassessment.

Appeal from a judgment of tbe circuit court for Wauke-sha county: Jakes J. Dice:, Circuit Judge.,

*Reversed.*

At tbe times mentioned in tbe complaint defendant was a municipal corporation organized and existing under tbe general city charter law of tbe state of Wisconsin, and plaintiff was tbe owner of tbe south fifty-three feet of lot 6, block 6, Cutler’s addition to tbo city of *Waufcesha.*In May, 1900, tbe common council of defendant by resolution duly authorized tbe grading and paving of West avenue in said city, upon which avenue plaintiff’s lot abuts. Tbe board of public works, pursuant to said resolution, proceeded to assess tbe benefits and damages to tbe abutting property occasioned by tbe improvement, and assessed’ $120 benefits against plaintiff’s property, and on December 3, 1900, duly filed its report with the city clerk of defendant city, purporting to Jie in accordance with law in such cases made and provided as to benefits and damages to tbe property owners on said West avenue by reason of tbe improvement, which report showed that tbe property, including that owned by tbe plaintiff, was not dam*240aged by tbe improvement. Due notice was given, to all property owners, as required by law, of tbe making of said assessment of benefits and damages, and of tbe filing of said report, and of tbe time and place for review and bearing objections to sucb assessment and report, and upon sucb bearing said report was confirmed. Afterwards, and in accordance with sec. 925 — 191, Stats. 1898, due proceedings were bad and notice given to all property owners that tbe work bad been completed, and unless tbey paid their assessment improvement bonds would be issued. After tbe work of said improvement bad been duly approved tbe contractor doing tbe same received a certificate therefor issued in July, 1901, as to tbe parcel of land described in tbe plaintiff’s complaint.

On July 16, 1908, tbis action was brought to set aside *the*assessment against plaintiff’s property and for reassessment of benefits and damages. Defendant demurred for want of facts sufficient to constitute a cause of action, which was overruled. Defendant answered, setting up, among other things, that one J. K. Randle was managing agent,of plaintiff and bad charge of her property and full knowledge of tbe acts and things done by defendant in relation to tbe improvement, and that plaintiff, through her agent, voluntarily paid tbe assessment for said improvement.

Tbe court below found that tbe common council duly directed the board of public works to make tbe improvement’; that tbe property of plaintiff was assessed as to benefits in tbe sum of $120; that prior to tbe commencement of tbis action plaintiff paid to tbe city clerk of defendant,, through her agent, -the amount of tbe benefits assessed by reason of said improvement; and further found that tbe assessment of benefits and damages by reason of tbe improvement in front of plaintiff’s property was arbitrary and should be set aside, and a reassessment of benefits and damages as to plaintiff’s property bad, and directed judgment, with costs. Judgment was entered accordingly, from which tbis appeal was taken.

*241Eor the appellant there was a brief by *Henry Lockney,*attorney, and *II. J. Frame,*of counsel, and oral argument by *Mr. Frame.*

Eor tbe respondent there was a brief by *R,yan, Merton &*Newbury, and oral argument by *T. F. Ryan.*

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 *242board of public works. *Babcock v. Fond du Lac,*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, 61 N. W. 361; *Custin v. Viroqua,*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, 10 Sup. Ct. 620; *Railroad Co. v. Commrs,*98 U. S. 541; *Babcock v. Fond du Lac, supra; Rutledge v. Price Co.*66 Wis. 35, 27 N. W. 819; *Powell v. St. Croix Co.*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.