If plaintiff is entitled to recover, it surely is because defendant is indebted to him. This indebtedness arises by reason of the payment of taxes unlawfully assessed, and this would be so whether the payments were voluntary, or were induced by coercion. The provision of the constitution cited in the foregoing opinion prohibits political and municipal corporations from becoming indebted, in "any manner or for any purpose," beyond the limit prescribed. They cannot unlawfully levy taxes, and, upon voluntary or coerced payment thereof, become the debtors of the tax payers, when they have already exceeded the constitutional limit of indebtedness. The tax payers should, as is their duty, resist, by proper proceedings, the collection of such illegal taxes, or in the same way cause the assessments and levies to be declared void by the courts. They gain no rights or standing in the courts by submitting to illegal taxation, *Page 144 which will enable them to enforce claims against the cities in excess of the constitutional limits of their indebtedness.
The majority of the court in the foregoing opinion base their conclusion upon the thought that the acts of the defendant in levying and collecting the taxes was a tort, and that the liability of defendant does not, therefore, rest upon debt, as contemplated by the constitution. It will be observed, however, that they more than once use language which, in effect, admits that defendant is indebted to plaintiff on account of the illegal taxes paid to it. Let it be conceded that the acts of defendant in levying and collecting the tax were "torts," (though I conceive that the word is never applied in the law to such transactions,) yet it does not follow that plaintiff may maintain an action to recover in damages as for a debt against defendant. When property or money is tortuously taken, the owner or person injured may prosecute the tort-feasor for a trespass, or in other form of action giving special remedies for torts; or he may, by proper action', recover the identical property or money, if it can be reached, of which he was deprived. He may waive the tort, and sue as for a debt upon contract, which the law will imply between the tort-feasor and the person injured by the wrong. When such an action is brought, recovery is based upon an implied contract, whereon a debt arises between the wrongdoer, the defendant, and the plaintiff. The case before us is prosecuted in conformity with these familiar doctrines of the law, and is, in truth, an action to recover a debt; the tort, if there ever was any, which I do not admit, being waived.
The plaintiff having paid defendant the taxes, the money went into the city treasury, and it is impossible to recover the identical money secured from plaintiff. Indeed, the plaintiff does not attempt by this action to recover it. He asks for a judgment in damages, not for the identical dollars he paid to defendant. But the majority of the court mistakenly say that the money paid by plaintiff did not become *Page 145 the property of defendant, and the identical money now belongs to plaintiff. There is no such claim made by plaintiff, and the action is based upon no such theory. As I have before said, it would be impossible for the plaintiff to recover the identical dollars paid by him, for they could not be identified. I never heard of an attempt to do such a thing in any case. The plaintiff having failed to restrain defendant from collecting the money, and being unable to recover the identical dollars paid by him, brings this action as for a debt, for money had and received. But the constitution declares that defendant was and is in a condition which forbids it to be bound as a debtor. This is the effect of the plain language of that instrument, and we are required to enforce it to the letter, without regard to consequences. The enforcement of the constitution may work a hardship upon plaintiff. With this we have nothing to do. We ought not to let this hard case make bad law.
I am clear in the opinion that the judgment of the circuit court ought to be reversed.
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