property at tax sale to satisfy such assessment, unless the same was paid as the charter prescribed; but before the city could proceed to grade and fill any particular street, the city council was required, by resolution, to declare such improvement necessary, and to cause such resolution to be published in an official paper for four consecutive weeks. This duty the city council entirely neglected to perform, and for that cause the territorial supreme court declared that the purchaser took nothing by the tax sale. Whatever right to recover the purchase money he may have had is here sought to be enforced by his assignor. It is not claimed that there is any express statute authorizing a recovery. Appellant’s position is that a purchaser at a tax-sale of a void tax-sale certificate may, on common-law principles, in an action for money had and received, recover the consideration paid from the municipality for whose use and benefit the tax was levied and which received the benefit of the consideration. Preliminary to any investigation of this position, we notice that the defects which rendered the tax-sale invalid were all defects in procedure. Prima facie, the property was subject to taxation for the improvement of the street upon which the property abutted, and the city authorities had jurisdiction to assess and collect such tax; but because they failed to follow their authority their action was invalid. But an investigation of the records pertaining to the attempted taxation would have revealed all the infirmities. It is true that municipal corporations can claim no exemption from the universal obligation resting upon all contracting parties to do justice, and no statute is required to compell them to refund money which they have received to their own use through any fraud or misrepresentation on their part, or through any mistake of fact, or which of right they ought not to retain. Louisiana v. Wood, 102 U. S. 294; Chapman v. County of Douglas, 107 U. S. 348, 2 Sup. Ct. Rep. 62; Clark v. Commissioners, 9 Neb. 516, 4 N. W. Rep. 246; Pimental v. City of San Francisco, 21 Cal. 351; Paul v. Kenosha, 22 Wis. 256.
Considerations of this character led the supreme court of Wisconsin, at an early date, to hold squarely that money paid at tax-sale for void tax certificates could be recovered back in an action for money had and received. Norton v. Supervisors,
