Wood v. Township of Norwood

Campbell, J. This was an action of assumpsit for money had and received, begun in the circuit court for the county of Charlevoix, to recover back the amount of certain town [33] ship taxes paid under protest, as illegal. The illegality-urged on the trial consisted in raising money to refund to the town treasurer funds which it was alleged had been stolen. The whole amount of taxes paid under protest was $32.47, as set forth in the bill of particulars, and the portion of this for which the jury gave a verdict was $3.60. Upon this judgment was rendered for plaintiffs with costs of suit. No error was assigned on the allowance of costs. There was no reduction by set-off. Several questions arose on the trial, but most of them become unimportant in the view we take of the case. We are inclined to think there was evidence enough to go to the jury. But it appeared from the testimony of Orvis D. "Wood,- who was the party taxed and who paid the tax, that he was a member of the board of supervisors, being supervisor of Charlevoix, and as such voted for imposing the whole tax in question, and he, according to his own statement, knew of the moneys stolen, and was familiar with the money matters of Norwood. The court refused to charge that if he, knowing the condition of the township funds, made no objection before the board of ^supervisors, but on the contrary voted for levying the tax, he should not recover. ■ The tax law expressly authorizes the board of supervisors to examine into the certificates of money to be raised in townships, and directs that “they shall hear and duly consider all objections made to raising any such moneys, by any tax-payer to be affected thereby.” Acts of 1882, p. 15 § 24. Under these circumstances the plaintiff can hai’dly be allowed to complain of his own act, and recover back taxes which probably would not have been laid if he had made timely objection. We think this objection should have been considered, and that there was error in ruling against it. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.