
    Garfield Investment Company, Respondent, vs. Town of Oconomowoc, Appellant.
    
      April 4
    
    May 2, 1950.
    
    
      The cause was submitted for the appellant on the brief of Alvin G. Brendemuehl of Oconomowoc, and for the respondent on the brief of Clayton A. Cramer and Robert T. Mc-Grow, both of Waukesha.
   Hughes, J.

The town concedes that there can be no legal tax levy for expenditures made by it on a private roadway, but seeks to defend against the plaintiff’s action on the ground that it was merely collection of a debt by the town which the plaintiff was estopped to deny because it had received the benefits of the expenditures made by the town and had participated in similar transactions in previous years.

The town has no commercial status, and can obtain money from its citizens only by taxation. The levy in this case was an attempted levy of a special assessment and when the plaintiff paid it under protest, it paid it as a taxpayer, and is now entitled to maintain this action to recover it. The defense offered being sham, the trial court properly entered summary judgment in the plaintiff’s favor.

By the Court.- — Judgment affirmed.

Gehl, J., took no part.  