Allen v. City of Greenwood

• Decision Date: 10 January 1912
• Citation: 133 N.W. 1094,147 Wis. 626
• Parties: ALLEN v. CITY OF GREENWOOD.
• Court: Wisconsin Supreme Court

147 Wis. 626

133 N.W. 1094

ALLEN

v.CITY OF GREENWOOD.

Supreme Court of Wisconsin.

Jan. 9, 1912.

Dissenting Opinion, Jan. 10, 1912.

Appeal from Circuit Court, Clark County; James O'Neill, Judge.

Action by G. W. Allen against the City of Greenwood. From a judgment of dismissal, plaintiff appeals. Affirmed.

This action was brought to recover taxes levied upon personal property alleged to have been illegally assessed against the plaintiff and collected under protest. The action was commenced in justice court, and on appeal tried in the circuit court without a jury, where judgment was entered dismissing the plaintiff's complaint, from which this appeal was taken.

The court below found as follows: That during all the times mentioned in the complaint plaintiff was a resident of the village of Loyal, Clark county, Wis., and never was a resident of defendant city. That in the year 1905 the assessor and taxing officers of the defendant city assessed to plaintiff personal property valued at the sum of $2,222.18 as being personal property owned by plaintiff liable to taxation in said city on the 1st day of May, 1905. That thereafter said assessment of personal property was carried out on the tax roll of said city for the year 1905 as an assessment against plaintiff and the amount of $35 taxes upon said assessment was carried out upon the tax roll of said city for 1905, and said personal property tax, with a warrant for the collection thereof in due form of law annexed thereto, was in December, 1905, delivered to the city treasurer for collection; said treasurer by said warrant and tax roll being directed and commanded to collect said $35 tax from plaintiff. That thereafter and during the month of February, 1906, said city treasurer demanded of plaintiff that he pay said tax, which plaintiff refused to do, and thereafter and on or about the 15th day of February, 1906, said treasurer threatened to levy upon and sell the property of plaintiff to satisfy said tax, whereupon on the 15th day of February, 1906, plaintiff, in order to protect his property from levy and sale, was compelled to pay and did pay under protest said personal property tax, which sum of $35 said treasurer duly turned into the funds in the city treasury. That such assessment of personal property was for and on account of a quantity of staves piled upon the right of a way of a certain railroad company within the limits of said city. That the plaintiff had purchased said staves from various parties, and they were hauled and delivered to plaintiff within the limits of said city on and prior to the 1st day of May, 1905. That the plaintiff was the lawful owner of said staves on the 1st day of May, 1905, and the legal title thereto was in him on that day. That the assessment was made by the assessor upon said staves and as made by the board of review was a valid and legal assessment of the personal property owned by plaintiff on and after May 1, 1905, situated within the corporate limits of the defendant city. That by the payment of said sum of $35 taxes so assessed and levied plaintiff paid the lawful tax assessed on said staves, and he has not made it appear to the court that he has paid more than his equitable share of the taxes levied in said city. As conclusions the court found that the plaintiff was not entitled to the relief demanded in his complaint, but that said complaint should be dismissed, with costs to be taxed in favor of defendant.

Winslow, C. J., and Marshall and Barnes, JJ., dissenting in part.Geo. L. Jacques, for appellant.

W. J. Rush, for respondent.

KERWIN, J. (after stating the facts as above).

The facts in this case are substantially undisputed. It was stipulated on the trial that $35 taxes were collected from plaintiff by the city treasurer of defendant city, and paid into the city treasury; the same being taxes levied upon merchants' and manufacturers' stock, namely, oak staves. It was also stipulated that, so far as plaintiff's assessments and property were concerned, no evidence was taken by the board of review.

It further appears that the staves in question were assessed at $2,130.85 and upon the personal property statement signed by the assessor appeared an indorsement purporting to be made by the board of review changing the assessed valuation to $2,222.18. The evidence shows that no other records could be found in the office of the city clerk relating to this assessment, except the tax roll, from which it appeared that personal property consisting of oak staves was assessed against plaintiff valued by the board of review at $2,222.18, against which taxes were assessed and carried out in the sum of $33.33. It was also conceded that the tax roll was duly in the hands of the city treasurer when he collected the tax from plaintiff. The plaintiff was a resident of the village of Loyal, and not a resident of the defendant city. The record further shows that plaintiff was a dealer in staves and shipped them from railway stations directly to consumers, one of the stations being the city of Greenwood, defendant; that during the winter of 1904 and 1905 appellant bought staves from various parties which were landed at the railway station in the defendant city. The appellant was assessed for the staves he had piled at the station in the defendant city on May 1, 1905, being staves bought during 1904 and 1905 from three parties, namely, Fricke & Rossman, F. J. Blecha, and William Huntzicker, except one car load of about 8,000 shipped out in April, 1905. The amount paid for the staves at the station on May 1, 1905, to the three parties named, was $2,208.31.

The contracts for the purchase of the staves were verbal, and covered all staves cut during the season by the parties named, and were to be delivered at the railway track in the defendant city during the winter of 1904 and 1905, at a specified price per thousand. Appellant was to cull, pile, and count them. The staves were all hauled to the landing in defendant city prior to May 1, 1905. The culling, inspecting, and piling was done by appellant in accordance with the contract; payments were made from time to time during the winter. The agreements of purchase with the parties above mentioned were substantially the same, except that when the contract with Fricke & Rossman was made February 26, 1905, which was Sunday, part of the staves were piled at the railway landing, and the agreement provided that said Fricke & Rossman were to haul the rest of the staves onto the landing subject to inspection, culling, and counting by the plaintiff, and to load or stand the expense of loading them on cars. On the day of purchase of the Fricke & Rossman staves, plaintiff made a payment on them, and during the winter annd before May 1st other partial payments were made. During the last half of May they were sorted, counted, inspected, and paid for, and Fricke & Rossman paid the expense of loading them on the cars. The contracts for the Huntzicker and Blecha staves were made on secular days, and the staves were not to be delivered on cars and were all delivered at the railroad track before May 1, 1905.

The contentions of appellant for reversal are: (1) That the title to none of the property passed to plaintiff until after May 1st; therefore was not assessable to plaintiff. (2) That as to Fricke & Rossman staves no contract, except the Sunday agreement, which was void, was made until after May 1st; therefore no title passed until after May 1, 1905. (3) That the board of review without evidence raised the plaintiff's assessment $91.33, and that the proportionate amount of taxes assessed against plaintiff on the amount that his assessment was raised was illegal, and that he should recover that amount in any event.

The court below found that the plaintiff had purchased the staves in question, and that they were delivered to him in defendant city on and prior to the 1st day of May, 1905, and that plaintiff was the lawful owner on said day.

[1] We think this finding is supported by the evidence, and that the plaintiff was the owner of the staves on the 1st day of May, 1905, and therefore they were properly assessed to him in the defendant city. Sections 1040 and 1044, Stats. 1898. It is quite clear, we think, upon the evidence, that there was a delivery when the staves were piled at the landing or railway track in the defendant city in accordance with the agreements. Nothing further was to be done by plaintiff, except, in the case of Fricke & Rossman staves, the vendors were to pay the expense of loading which they did, though after May 1st. After the delivery at the railway station which was before May 1st plaintiff was to do the inspecting, culling, and counting. So we are of opinion that the plaintiff was the owner of the staves on May 1, 1905, within the meaning of section 1044, Stats. City of Merrill v. Champagne L. Co., 75 Wis. 142, 43 N. W. 653.State ex rel. Hines L. Co. v. Fisher, 129 Wis. 57, 108 N. W. 206.

It is argued by appellant that because the staves were to be inspected, counted, and culled, the title did not pass to plaintiff until this was done, which took place after May 1st. This contention was held against plaintiff by the court below, and we think rightly so upon the evidence. Galloway v. Week et al., 54 Wis. 604, 12 N. W. 10;Gill et al. v. Benjamin, 64 Wis. 362, 25 N. W. 445, 54 Am. Rep. 619.

There was no selection to be made. All the merchantable staves were sold, and it seems quite clear from the evidence that it was the intention of the parties that the title should pass when the staves were delivered at the railway track. State ex rel. Vilas v. Wharton, 117 Wis....