
    Groesbeck v. Cincinnati et al.
    
      Street assessments — Illegal—Payment—Recovery—Stahite of limitations.
    
    An ordinance of a cit}’, assessing on the property abutting on a street more than is required to pay the cost of the improvement of the street, is, as to the excess of the assessment over the cost of the improvement, illegal; and, having been paid by the property owner,, an action to recover back such excess, under section 5848, Revised Statutes, must be commenced within one year after such payment. The fact that the passage of the ordinance was induced by a mistake in the calculation of the cost of the improvement, and that payment was made in ignorance of such mistake, will not have the effect to save the action from the limitation provided for in said section.
    (Decided May 22, 1894.)
    Error to the General Term of the Superior Court of Cincinnati.
    This action was commenced on the 27th day of May, 1892. The amended petition filed in the case is as follows:
    “The plaintiff says that he is, and for a long time prioi to the commencement of the proceedings by the defendant, the óity of Cincinnati, for the improvement of Clifton avenue, has been the owner of lots and lands in the_ subdivision of the estate of the late Col. John Riddle, deceased, fronting 1,572.89 feet upon the west side of Clifton avenue, in the city of Cincinnati.
    “,The plaintiff further says that on the 12th day of February, 1887, the defendant, the city of Cincinnati, being a municipal corporation, and owning and having control of Clifton avenue, a public highway, one mile in length and one hundred fefet in width, extending. from the north corporation line of said city, south of McMillan street, had, in accordance with the laws and ordinances, established a g-rade to said avenue, adopted a resolution declaring it necessary to improve said avenue, and ordered the same to be improved by grading, setting curbs, paving gutters, macadamizing the roadway and draining the same, and declared that the cost and expense of the same should be assessed against the abutting property in proportion to the feet front, and entered into a contract with one Charles N. Danenhower, on said 12th day of February, 1887, to do said work. Said work was reported to be completed: and on the 5th day of January, 1889, the cost and expense thereof was, by-a special ordinance then passed by: the defendant, the city of Cincinnati, assessed against the abutting property at'- the rate of $9.766385 per front foot, and all the property owners abutting said avenue were required to pay said assessment in cash within twenty days, and declaring that in default thereof said assessment should be a lien upon the abutting real estate, and could only be paid in installments of one-tenth per year for the period of ten years, with five per cent, interest annually upon said installments until the same should be paid.
    “And thereupon the plaintiff, relying upon the integrity and fidelity of the agents of the defendant, the city of Cincinnati, to correctly estimate the quantities of work done and to compute the same, and relying upon the certification of the completion of said work, did, on the 29th day of January, 1889, pay to the defendant, E. O. Eshelby, as city comptroller of the defendant, the city of Cincinnati, the amount so computed by said city’s agents, to be due to the defendant, the city of Cincinnati, to wit:
    “The sum of $15,361.45, being at the rate of $9.766385 per front foot, for the whole number (1,572.89) of front feet of lots and lands abutting said avenue owned by the plaintiff.
    “The plaintiff further says that on or about the -day of-•, 1892, he learned that said work was not completed on the 5th day of January, 1889, and was not completed until the 1st day of January, 1890, and that the amount of work as estimated by the agents of the defendant, the city of Cincinnati, and paid by this, plaintiff through a mistake of fact was- not performed.
    “The plaintiff says that the agents of the defendant, the citjr of Cincinnati, in the final estimate allowed the contractor for grading or excavating............................................................196,342 cubic yards.
    When in fact he only graded or excavated.....................................172,973 cubic yards.
    Making an excess in quantify of................................................................23,369 cubic yards.
    The contract price for which was twenty-four cents per yard, making’ an overcharge against the property owners abutting said avenue for grading of..... $5,683 56
    Also an excessive amount of coarse macadam of 791 cubic yards at $1.19.... 941 29
    Also an excessive amount of fine macadam of 383 cubic yards at $1.75............... 670 25
    Making an overcharge against said property owners upon macadam of...................... 1,611 54
    And that said agents also made an overcharge against said property owners above the original contract the amount of........................................................................................... 474 80
    Making a total overcharge against said property owners for work not done or performed of................................................................. 7,774 90
    “The plaintiff says the whole number of feet abutting said improvement is 10,372.74 feet, and that said overcharge amounts to $0.749604 per front foot, against each and every foot abutting said improvement, and that the same was occasioned by the agents of the city of Cincinnati, erroneously computing the cost and expense of said improvement under said contract, upon quantities of work and materials larger than in fact was done and furnished in the amount as above set forth.
    “The plaintiff further says that at the time he made said payment he had no knowledge of said erroneous computation, that he had no opportunity to learn of it, that if he had known that he was overcharged he would not have paid the bill for said work.
    “The plaintiff says the amount he overpaid through a mistake of facts is $0.749604 upon 1,572.89-feet, and amounts to $1,179.04, with interest from January 29, 1889, no part of which has ever been paid back to plaintiff, although often requested.
    “The plaintiff further says that he makes no objection to said improvement; and his only claim is that the quantity and amount of work charged for was not done, and his said payment was made under a mistake of the facts without fault on his part, and he asks to have returned to him the amount so overpaid with interest from the date of payment.
    ■ “Wherefore the plaintiff prays that summons may issue to both of said defendants, and that they may be required to answer the same, and for judgment for $1,179.04, with interest from January 29, 1889, for money had and received, and for all equitable and proper relief.”
    To this amended petition the defendants, the city of Cincinnati and D. W. Brown, city auditor, filed a general demurrer, which was overruled by the special term of the superior court of Cincinnati, and judgment rendered in favor of the plaintiff. A petition in error was filed in the general term by the defendants below, and the judgment of the special term was reversed and judgment rendered against plaintiff below.
    On motion, leave was granted to plaintiff to file a petition in error in this court seeking to reverse the judgment of the general term.
    
      Miller & Renner, for plaintiff in error.
    An “error in calculation” is always a mistake of fact and never a mistake of law, and that an “illegal assessment” is always a mistake of law and never a mistake of fact. Pelton v. Bemis, 44 Ohio St., 51; Whitbeck v. Minch, 48 Ohio St., 210; Wilson v. Pelton, 40 Ohio St., 306; Devine v. Edwards, 101 Ill., 140; 87 N. Y., 452; 15 Am. & Eng. Enc. of Law, 634, 645; Thompson v. Doty, 72 Ind., 338; Renard v. Fiedler, 3 Duer, fifth line from bottom of page 323.
    The recovery back of money paid through mistake of fact is one of the original heads of equity. It is founded on the principle that there is no consideration to sustain such payment, and this right is as fully recognized and established as any right in equity, as much so as any right arising by reason of the fraud of the opposite party. Strusburg v. Mayor, 87 N. Y., 456.
    The plaintiff has brought an action for an injurv to his rights not arising on contract, and not otherwise enumerated in the statutes of limitations, and it will not be barred in less than four years under section 4982, Revised Statutes. Pomeroy’s Equity (2d edition) sections 363, 364, 365, 377, 854, 981; 18 Am. and Eng. Enc. of Law, 225, 226, 227, 228; Wooley v. Staley, 39 Ohio St., 354.
    
      Theodore Horstman, corporation counsel, for defendants in error.
    The question as to whether the payment was voluntary or involuntary, or whether there was any consideration for the same, do not, it appears to us, arise in chis case. Reliance is placed entirely upon the construction of the statute.
    Counsel endeavors to show that the assessment in the present case is not an ‘ ‘ illegal assessment ’ ’ within the meaning of the statute. But is it not a play upon words to say that the word “illegal” in the statute applies to only one class of assessments and not to another? The statute, we claim, makes no distinction and goes so far as to provide that action can be brought to recover back such assessments as have been collected, without regard to the amount thereof.
    Before its enactment there was no adequate remedy for the property holder in a case of this kind, for if the assessment duplicate was regular upon its face, but illegal by reason of some act or omission of the assessing officer or board, the remedy must be against the officer or board committing the error, so that the officer making the collection could not be held liable. Stephen, Treas., etc., v. Daniels et al., 27 Ohio St., 535; Tone v. Columbus, 39 Ohio St., 301; Trimmer v. Rochester, 134 N. Y., 76; City of Covington v. Voskotter, 80 Ky., 219; City of Covington v. Hoadley, 83 Ky., 444.
    There is .another aspect in which this case may be viewed independent of the statute of limitations. If the payment was made under a mistake of facts, the plaintiff should have exercised reasonable diligence to ascertain those facts. Pomeroy’s Equity Jur. (2d Ed.), section 856; Story’s Eq. Jur., section 146 (Redfield’s Ed.).
    If the court should find that this was a payment made under a mistake of law, the late decision of this court in the case of Whitbeck, Treas., v. Minch, 48 Ohio St., 210, would be conclusive.
   Burket, J.

The amended petition filed in this case shows that on the 5th day of January, 1889, the city of Cincinnati passed a special ordinance whereby it assessed against the property abutting on Clifton avenue, in said city, the sum of $9.766385 for each front foot of lots on said avenue, to raise money to pay for improvements theretofore made on the avenue. Plaintiff owned 1,572.89 feet of property on the avenue, and the amount assessed against his property by said ordinance was the sum of $15,361.45, which sum he paid to the city on the 29th day of January, 1889, in payment of the assessment so made by the ordinance on his property. Afterward, in the year 1892, plaintiff learned that in the final estimate made by the agents of the city, and upon which the ordinance was based, a mistake was made whereby, there was assessed on his property in excess of what the improvement cost, the sum of $1,179.04; that mistake was occasioned by the agents of the city erroneously computing the cost and expense of the improvement under the contract upon quantities of work and material larger than in fact were done and furnished; that plaintiff at the time of payment did not know of this error in computation; that he had no means of learning of the error sooner, and that had he known of the overcharge, he would not have made payment. To avoid the one year statute of limitations, he avers that as to the excess of $1,179.04, it was a payment under mistake of fact, and he relies upon the case of Woolley v. Staley, 39 Ohio St., 354.

In that case, the commissioners had employed a person to look after omitted taxes, and the person so employed informed Mr. Woolley that he- was liable to pay a certain sum as omitted taxes on certain property owned by him, and the auditor of the county confirmed this information, and Mr. Woolley believed it to be true; and upon certificate of the auditor he paid the amount of the alleged omitted taxes to the treasurer and took his receipt therefor, but the tax was never assessed against him in any manner by any officer. Afterward, Mr. Woolley ascertained that his property was not liable for any omitted tax, and that he had paid the money by mistake of fact, and he brought his action to recover it back. He was permitted to recover on the ground that the money paid was not in payment of a tax, but was money paid by mistake of fact.

The court in disposing’ of that case, say on page 359.: “It was not a tax. It was never levied by any authority. It was never assessed, legally or illegally, upon any property or against any person. It was never charged upon any duplicate, either originally or by the auditor in the way of correction. It had no semblance of a tax, which may be so paid by the voluntary act of the party as will prevent him from recovering it back. ’ ’

The ease now under consideration is very different from the above. Here the assessment was levied by the ordinance on the plaintiff’s property, and was so charged on the books of the auditor, of .ah which plaintiff had notice, and acting upon his knowledge, he paid the full amount of the assessment to the city, and the city received the money in payment of such assessment. And it is conceded that, to the extent of the cost of the improvement, the money paid was in payment of the assessment, but it is claimed that the excess of $1,179.04, while it was included in the payment so made, and was regarded by all parties as money paid on an assessment, ceased, by some mysterious transformation, as soon as the error was discovered, to be money paid on an assessment, and became money paid by mistake of fact.

That a mistake was made, and that such mistake induced the passage of the ordinance, clearly appears from the amended petition. Still the fact that a mistake is made in an assessment proceeding does not change the character of the matter from an assessment to a mistake. The assessment remains the principal, and the mistake is only an incident. There may be a mistake in an assessment as well as in any other transaction, but the fact of such mistake does not change the character of the transaction, nor the form of the recovery. It is still an assessment, and the rights • of the parties must be worked out according to the law applicable to assessments.

The fact that the amended petition does not cab this excess an illeg’al assessment, counts for nothing in a court of justice. A court will look through the form of words to the substance, the real transaction, and not stumble at a name, nor for the want thereof.

It is therefore clear that the money sought to be recovered back is money paid on ■ an assessment, and that this action is brought under section 5848 of the Revised Statutes.

This statute does not interfere with the rights and remedies which existed in such cases before its passage in 1856, but it gives new remedies both at law and in equity. A full review of the cases in this state as to the rights and remedies, in illegal tax and assessment cases, both before and since the passage of this statute, is found in the case of Stephen v. Daniels, 27 Ohio St., 527, to which reference is made.

While the fact that plaintiff did not know of the error, and would not have paid the assessment if he had known thereof, appeals strongly to our sense of justice in his behalf, yet the fact remains that the law under which he invokes the aid of the court has limited his right of action to one year from the time of payment, and not from the time of the discovery of the error. He must accept the statute as a whole, including its disabilities and limitations.

It is also urged by counsel for plaintiff, that this is not an illegal assessment in the sense in which that term is used in the statute, that an error in calculation is not such an illegality as the statute contemplates, and that for these reasons the case should be governed by the law of mistake, rather than by the law of assessments.

Section 5848 is as follows: “Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either, and of actions to recover back such taxes or assessments as have been collected, without regard to the amount thereof, but no recovery shall be had unless the action be brought within one year after the taxes or assessments are collected.”

Had plaintiff refused to pay the assessment, he certainly could have enjoined the collection of so much thereof under this section as was in excess of the cost of the improvement, on the ground that such excess was illegal; and if illegal for the purpose of injunction, it was equally illegal for the purpose of recovering back such excess.

The term “illegal,” as used in this statute, is the opposite of the word “legal.” Every assessment is either legal or illegal. All assessments which are so far valid that their collection can be enforced by legal process, are legal, and all others are illegal, whatever the cause of their invalidity.

In the case at bar, the illegality of the assess-. ment is found in the assessing ordinance, and arises from the lack of power in the city to pass an ordinance assessing on the property more than the cost of the improvement. As to the excess over the cost of the improvement the ordinance imposes a burden in the nature of a tax or assessment not warranted by law, and opposed to the system of taxation provided in the constitution. The ordinance, therefore, as to this excess, is clearly unconstitutional, not warranted by law, and to the extent of such excess the assessment is illegal. True, the ordinance was induced by the error in calculation, but it was not the calculation which imposed the assessment, but the ordinance. The character of the transaction must be determined by that step which caused the injury and imposed the burden. The calculation, even though erroneous, would have imposed no burden on plaintiff’s property had it not been followed by the ordinance. It was therefore the ordinance that caused the injury and imposed the burden, and to the extent that it exceeded the cost of the improvement, it went beyond the power of the city, and it was to that extent illegal. If the assessment was legal, the demurrer was properly sustained, because plaintiff has no right to recover back a legal assessment. If the assessment was illegal, the demurrer was still properly sustained, because the action was not commenced until more than one year after payment of the assessment. So that whether the assessment was legal or illegal, the demurrer ought to have been sustained, and the judgment of the general term in favor of defendants is right.

Judgment affirmed.  