Armory Realty Co. v. Olsen

• Decision Date: 10 January 1933
• Citation: 210 Wis. 281,246 N.W. 513
• Parties: ARMORY REALTY CO. v. OLSEN, VILLAGE CLERK, ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 281

246 N.W. 513

ARMORY REALTY CO.

v.OLSEN, VILLAGE CLERK, ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge.

Action by the Armory Realty Company against Theodore B. Olsen, Village Clerk of the Village of Shorewood, and others, wherein defendants R. C. Schissler and Sidney B. Knox cross-complained against defendant the County of Milwaukee, and wherein the United States Fidelity & Guaranty Company was substituted as a party defendant in place of Schissler. From a judgment dismissing plaintiff's complaint and the cross-complaints of defendants Schissler and Knox, plaintiff and defendants United States Fidelity & Guaranty Company and Knox appeal.--[By Editorial Staff.]

Affirmed.

This action, which was commenced on the 5th day of December, 1929, seeks: (1) To have declared null and void four tax certificates based on general taxes for the years 1922, 1923, 1924, and 1925, levied against real estate owned by the plaintiff but which was in those years owned by the Light Horse Squadron Armory Association, which certificates were purchased by the defendant Schissler; (2) to declare null and void two tax certificates based on special assessments levied against the same land for local improvements made by the village of Shorewood, which certificates were purchased by defendants Knox and Schissler; (3) to enjoin the clerk of the village of Shorewood from delivering to the village treasurer any assessment of plaintiff's lands for general taxes for the years 1926, 1927, and 1928; (4) to enjoin the treasurer of the village of Shorewood from collecting any of such taxes or returning them as delinquent to the county treasurer of Milwaukee county; and (5) to quiet title to plaintiff's lands from any claims based upon any of such taxes or tax certificates. Defendants Schissler and Knox cross-complained against defendant Milwaukee county, alleging that the taxes upon which the tax certificates were based were illegal and demanding repayment of the money paid to Milwaukee county for the tax certificates. Prior to the entry of judgment, United States Fidelity & Guaranty Company, to whom the Schissler certificates had been assigned, was substituted as a party defendant in place of Schissler. From a judgment dismissing plaintiff's complaint and the cross-complaints of defendants Schissler and Knox, the plaintiff and the defendants guaranty company and Knox appealed.Fish, Marshutz & Hoffman, of Milwaukee (W. H. Voss, G. R. Hoffman, and I. A. Fish, all of Milwaukee, of counsel), for appellants.

Lines, Spooner & Quarles and Harold M. Baum, all of Milwaukee (Maxwell H. Herriott, of Milwaukee, of counsel), George A. Bowman, Dist. Atty., C. Stanley Perry, Asst. Corp. Counsel, and L. J. Burlingame, all of Milwaukee, for respondents.

NELSON, J.

Two distinct controversies are involved in this appeal. The first controversy relates to the validity of tax certificates based upon general taxes levied upon the lands of plaintiff's grantor, the Light Horse Squadron Armory Association (hereafter called the association), for the years 1922, 1923, 1924, and 1925, and to the validity of certain general taxes levied or about to be levied upon the same lands by the village of Shorewood for the years 1926, 1927, and 1928. As to all of these tax certificates and taxes it is contended that they are illegal and void because the lands were at all times mentioned exempt from taxation by virtue of the provisions of section 70.11 (16), which is as follows: “The property in this section described is exempt from taxation, to wit: * * * (16) The armory owned by any regiment, battalion or company of the Wisconsin national guard and used for military purposes by such organization; but such property shall be subject to local assessments for the improvement of streets or sidewalks, or for the construction and repair of sewers or drains.”

The second controversy relates to the validity of two tax certificates based upon special assessments against the lands of the association for (1) storm sewers laid by the village of Shorewood, and (2) planting trees on the boulevard portion of the street upon which the said lands abut. As to these certificates it is contended that they are null and void because the statutes under which the village of Shorewood proceeded in making the assessments are unconstitutional.

The facts are not in dispute. We content ourselves by reciting the material facts as found by the trial court. The facts relating to the first controversy are as follows: Prior to January 1, 1884, a troop of cavalry was organized in the city of Milwaukee which was known as the Light Horse Squadron. That organization, pursuant to the laws of this state, thereafter became a part of the National Guard and was known as Troop A. First Wisconsin Cavalry. In 1916 two troops, A and B, were organized out of Troop A and additional recruits. In 1917 a regiment of cavalry was organized in this state to which were assigned the officers and enlisted men of Troops A and B. In 1917 that regiment was drafted into the service of the United States. In November, 1919, provisions were made for the maintenance of a regiment of cavalry and one separate squadron of cavalry in the state of Wisconsin. In January, 1920, Troop A, First Wisconsin Cavalry, was reorganized and remustered into the service of the state and reorganized as a unit of the National Guard. Out of said troop other cavalry units were formed which were thereafter redesignated as troops of the 105th Cavalry. During all of the years material to this controversy all of said troops were quartered upon the lands of the association, the taxation of which gives rise to this controversy.

In February, 1888, there was organized under the general corporation laws of this state a nonstock corporation known as the Light Horse Squadron Association. The purpose of such corporation, as stated in its articles of organization, was to acquire, hold, maintain, and dispose of real and personal property for military purposes and for such other purposes as may be lawfully carried on in connection therewith. The articles of organization provided that the membership of the association should consist of all persons who were active members of the Light Horse Squadron on January 1, 1884, and all who had thereafter enlisted therein down to the date of the execution of the articles and also all persons who should thereafter enlist in such squadron during its existence and the existence of the corporation, except such persons as had theretofore or might thereafter be dishonorably discharged from the Wisconsin National Guard or expelled from membership in the squadron. Upon the organization of Troop A, the articles were amended so as to provide that the members of Troop A should be members of the association. The articles further provided that the corporation shall not be dissolved so long as there remains a lawful minimum membership of the squadron; that in case of disbandment of the squadron the association shall not be dissolved except on the affirmative vote of two-thirds of its living members; that in case of the dissolution of the corporation, the rights and interests of each member and the respective heirs of deceased members in the corporate property shall be determined by the length of his enlisted service in the squadron; and that an account of the military service of each member shall be kept. The articles further provided for honorary members who should have the privilege of the armory but no interest in the property or funds of the troop.

In the year 1884 the association purchased a piece of property located on Broadway in the city of Milwaukee and erected thereon an armory. This property was sold on contract to the city of Milwaukee in 1906, and some time thereafter the association purchased in Shorewood the tract of land involved herein upon which it erected an armory. The property of the association located on Broadway was never taxed by the city of Milwaukee. In the month of February, 1912, the board of directors of the association was authorized and directed to enter into an agreement with the commanding officers of the squadron then known as Troop A for the leasing of all of its buildings and grounds located in the village of Shorewood for the following rental, namely, an amount of money equal to the interest which the association was obliged to pay on its indebtedness, less the amount of interest which the association was receiving from the city of Milwaukee on its contract with the city of Milwaukee until the rental so figured shall amount to no more than $800.

By chapter 498 of the Laws of 1907, there was annually appropriated to the association the sum of $2,000 for the purposes of maintaining the buildings and grounds of the association, which appropriation carried the provision that within one year the association should cause to be erected upon its grounds suitable buildings to be used for military purposes and that the buildings and grounds be of a value of not less than $80,000. That law further provided that the state should at all times have the right to use the buildings and grounds for the quartering of its troops in cases of riot, insurrection, or concentration of troops, in which case the property was to be under the control of the Governor. In 1923 a new arrangement was made with the Adjutant General under the terms of which there was to be paid to the association the annual sum of $7,000, the association to furnish and maintain its premises located in the village of Shorewood for the use of five units and as regimental headquarters of the 105th Cavalry, Wisconsin National Guard.

The title to the lands was at all times in the association whose membership at the very beginning was identical or substantially identical with the membership of the troop. As the years passed retirements from the troop...