Page:North Dakota Reports (vol. 1).pdf/347

 In Churchman v. City of Indianapolis, (Ind.) 11 N. E. Rep. 301, the action was brought to recover purchase price of property bought at tax-sale for non-payment of assessment for street improvement, which assesament and sale were illegal and void, and the court says: “It is now deffinitely settled that money voluntarily paid on a demand in the nature of a tax, as an assessment in the nature of a street improvement really is, cannot be recovered back, except in pursuance of some statutory provision authorizing such a recovery, and we know of no statute permitting, much less requiring, money voluntarily paid upon either an erroneous or irregular or even wrongful assessment for the improvement of a street to be refunded. [Citing authorities.] From this, it very naturally follows that the doctrine of caveat emptor applies as fully to sales upon assessments for street improvements as to any analogous class of cases.” This case is direct authority for the application of the rule in an action which cannot be distinguished in principle from the case at bar. Let it be once granted—and it is not disputed in this case—that an assessment for street improvement is a tax, and the whole line of authorities at once applies to a case of that kind.

But one more point is made in the case. In 1889 the legislature of Dakota passed an act entitled “An act providing for the reassessment of abutting property for the improvement of public streets.” See chapter 31, Laws 1889. The statute provides that when any city “has heretofore, upon a petition of a majority of the abutting property owners upon any street, made a special assessment for grading or paving the same and assessed the abutting property uniformly, and in the same amount per front foot, and proceeded to pave or grade the street in accordance with the petition, and it shall appear that the ordinance or other proceedings in making the assessment were for any reason invalid, the city council is hereby authorized and empowered to reassess all the real property abutting upon such improvement upon which the special assessment for the same has not been paid, upon the front-foot plan, in such sum as may be sufficient to pay its just proportion of the cost of such improvement;” and the following sections point out the method of reassessing and collecting such tax. It is claimed that this statute, in effect, au-