By the Court
ElaNdeau J.The complaint makes out a cause of action against the Defendant, in regard to the tax of 1856. It alleges in substance that the Board of Commissioners did not examine the assessment rolls to ascertain whether the valuation of the real estate in the several districts bore a j ust relation or proportion to the valuation in all the districts in the county, as they were obliged to do under the provisions of sec. 23, p. 100, of the Old Revised Statutes. And also that the Defendants did not equalize the assessments as required in the succeeding section. These allegations are-made in rather a roundabout way, yet we think they, are contained in folios 5, 6, 7 and 8 of the complaint, which are as follows:
“And the said Plaintiff avers that on the 8th day of July, 1856, said Defendant at a session of said Board did examine the assessment roll of the assessor of said Hastings assessor’s district of said county aforesaid, and said Defendant did then and there by a vote reject the assessment roll of the assessor of said Hastings assessor district, on account of said assessor *272not having discharged his duties as assessor, and that said Eoard, said Defendant, did order the said Hastings assessor’s district to be reassessed.
“And said Plaintiff avers that said Defendant did not at said session of said Board, or at any other session, equalize and correct the assessment roll of said district of Hastings, or any other district in said county, for the taxes of the year 1856.
“And said Plaintiff avers that s,aid Defendant at a session of said Board held on the second day of September, a. d. 1856, did fix the rate of per cent, to be levied on the advalo-rem of the assessment rolls, including Territorial, school and county taxes, at one per cent.
“And said Plaintiff avers that said Defend ant took no other or further official action as a Board of County Commissioners on said taxes of 1856, other than heretofore particularly mentioned, previous to the 25th day of November, 1856.”
These allegations show what they did do, and also that they did nothing else. The Defendant insists that the Plaintiff must show that the assessment rolls, as returned by the assessors, were unequal, and needed equalization, as every intendment is in favor of public officers having performed their duty. Had it appeared that the examination had been made by the Board, and no equalization had followed, the intendment might have been that no equalization was necessary; but where it appears that the Board did not make the examination, we cannot infer that the failure to equalize arose from any such cause, but must conclude that the whole was an omission on the part of the Defendant to perform an essential step in the imposition of the tax. This view is strengthened by the allegation in folio twenty-two of the complaint in which it is alleged that the Defendant at a meeting “ did resolve that the tax of 1856, levied in said county of Dakota, was illegal, null and void, and the said Defendant did then and there totally disregard the same as binding and of force in said county.”
An issue of fact is made upon the cause of action, growing out of the Plaintiff’s salary as county attorney. The bill of exceptions, or rather case, for there are no exceptions, which *273was agreed upon by the parties, shows that the Plaintiff without objection, proved the material, facts alleged in his complaint on all four counts. The Court charged the jury that if the Defendant did not equalize and correct the assessment rolls of the assessors for 1856, that the tax was illegal. No exception was taken to this part of the charge, and no question can be made upon it here. We think, however, it was correct. The Court also charged that a payment of taxes to a collector upon a demand, with the assessment roll and warrant attached in his hands, was not a voluntary payment. In this he was also correct. Blackwell on Tax Titles, 197. No exception was, however, taken to the charge. The Court also charged that if the Defendant charged the collector with the sum he received from Bailly in their settlement with him, as taxes collected by him, they should find that the county of Dakota did receive the same to the use of the Plaintiff. In this he was also right. Blackwell on Tax Titles, 197; Foster vs. The Board Co. Commissioners of Blue Earth Co., decided at this term.
The charge on the subject of the third and fourth count was strictly correct.
The whole issue went to the jury, and they found a general verdict for the Plaintiff, as they had a right to do under sec. 35, ¶. 561, Comp. Stats. If the Defendant desired special findings upon any of the issues, he should have asked the Court to instruct the jury to find specially, under the same section. The action was for the recovery of money only ; the verdict was for a sum certain, no exceptions were taken to any of the testimony, or instructions of the Court, and the damages are not in any manner excessive. We are unable to find any error in the record, and must affirm the judgment.