Aumann v. Black

Mooee, Judge, delivered the opinion of the Court: From the view I take of this ease it is immaterial to decide whether the sum assessed and collected off of Smith & Co. by collector Black, was or was not a tax. It does not, however, seem to me to come within the meaning or legal acceptation of the term tax. It appears to be a local assessment for the use of the water from waterworks of Wheeling, designated in the statute of May 28, 1852, as “water rent"’ and in all the ordinances of the city it as styled water rent, except two of the ordinances mentioning it as “water rent or tax.” But whether it be a rent or tao',, it is to be assessed upon the person using the water by virtue and in pursuance of the ordinance of said city of Wheeling, and by the 5th section of said statute, if the person so assessed “shall fail, neglect, or refuse to pay the same to the officer appointed to collect and receive the same within thirty days after the same shall have become due and payable, the said officer shall have the same power and authority to collect the said water rents as are conferred upon sheriffs for the collection of the State and county taxes,” &c. Therefore this is simply a charge for the use of water furnished persons by the city, and is therefore not an ordinary tax, the consideration for the charge being the water supplied by the city to the persons using it, and for the collection of which the said statute of 1852 gives the additional summary remedy, where the amount of the charge has been assessed by the city council. Where, however, by the fraud, mistake or omission of the city officer or [778] officers whose daty it is to make the separate list of all manufacturers using or receiving the water, &c., no assessment is made by the council of the water rent, or charge, there can be no distraint; but the party receiving and using the water, who has been thus omitted, is justly liable to pay to the city what the use of the water received' and used by him is reasonably worth, and the city could maintain its action therefor. It would be strange, indeed, that the city should be barred from the right to recover from those who received and used the water thus furnished by the city, by the fraud, mistake or omission of the subordinate officers of the city. If the charge for the use of the water thus furnished was simply a tax, it might be otherwise; but as the charge is for value received, its right to receive must be as we have stated. Therefore, although the assessment, in this case, by the collector was, perhaps, irregular and unauthorized, still it may be regarded as an ascertainment by the collector of the city of the amount due the city, in his judgment, from said Smith & Co., for the use of the water furnished said Smith & Co. by the city ; and the payment by said Smith & Co. for such use. "Whether said estimation was too much or too little, we cannot determine in this case. That is a matter between said Smith & Co. and said city. The collector Black, in his answer, says that he received and paid to the city the |350.00 estimated by him to be due the city from Smith & Co. for the use of the water furnished by the city for the time mentioned in his answer. For the purposes of this case, as it is presented to us by the record, we must take said answer, as to the matters of fact therein stated, to be true. Therefore as it appears, from said answer, that the said firm of Smith & Co. was justly due to the city, at the time said'payment was made to collector Black, the amount he collected from them and paid to the city, for the use of the water furnished them, there was no liability on the collector which could be reached by suggestion to enforce the fieri facias lien as claimed by the plaintiff, and the [779] judgment of tbe municipal court against him should be reversed, with costs, and the suggestion dismissed, at the costs ofthe plaintiff in the suggestion. And this court proceeding to render such judgment as, the municipal court ought to have rendered doth dismiss the said suggestion at the costs of the plaintiff. The Other Judges Concurred. Judgment Reversed.