Ash Realty Corp. v. City of Milwaukee

• Decision Date: 06 October 1964
• Citation: 130 N.W.2d 260,25 Wis.2d 169
• Parties: ASH REALTY CORPORATION, a Wisconsin corporation, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Defendant, Village of Brown Deer, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 260

130 N.W.2d 260

25 Wis.2d 169

ASH REALTY CORPORATION, a Wisconsin corporation, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Defendant Village of Brown Deer, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

Oct. 6, 1964.

Rehearing Denied Nov. 24, 1964.

Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, Richard P. Buellesbach and Richard D. Silberman, Milwaukee, of counsel, for appellant.

Harold H. Fuhrman, Milwaukee, for respondent.

Julian Bradbury, Madison, Legal Counsel, League of Wis. municipalities, amicus curiae.

HEFFERNAN, Justice.

Ash Realty's complaint states that the tax was paid under protest to the Village of Brown Deer and to Milwaukee and that the plaintiff is unable to determine respective claims of Brown Deer and Milwaukee. Ash Realty's complaint states only what would constitute a cause of action under section 74.73(1), Stats. That statute reads:

'Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the town, city, or village, whether incorporated under general law or special charter, which collected such tax in the manner prescribed by law for filing claims in other cases, and if it shall appear that the tax for which such claim was filed or any part thereof is unlawful and that all conditions prescribed by law for the recovery of illegal taxes have been complied with, the proper town board, village board, or common council of any city, whether incorporated under general law or special charter, may allow and the proper town, city, or village treasurer shall pay such person the amount of such claim found to be illegal and excessive. If any town, city, or village shall fail or refuse to allow such claim, the claimant may have and maintain an action against the same for the recovery of all company so unlawfully levied and collected of him. Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter.'

Ash Realty contends that it has alleged a common law action to recover illegal taxes and that therefore the limitation is not the year set by sec. 74.73(1), Stats., but a longer period as provided by appropriate sections of the chapter 330. A review of the requirements of a common law cause of action reveals that the complaint herein does not allege facts sufficient to constitute the common law action. Under the doctrine of early cases of Powell v. Board of Supervisors (1879), 46 Wis. 210, 50 N.W. 1013, and Parcher v. Marathon County (1881), 52 Wis. 388, 9 N.W. 23, the common law prevailed that the taxpayer must allege that the tax was paid under a threatened or impending levy by the sheriff. In the Parcher case, the plaintiff alleged: (1) that the tax was illegal: (2) that the sheriff threatened levy and sale, but that plaintiff intended to recover the same.

Referring to the requirements necessary to a common law cause of action, this court has said:

'The rule formerly prevailed in Wisconsin that a mere payment of taxes under protest was not sufficient; that to entitle one to recover taxes paid under protest it must appear that the tax collector had done more than to merely notify the taxpayer that the tax roll is in his possession for collection, as was done in the case at bar.' Welch v. Oconomowoc, (1928), 197 Wis. 173, 178, 221 N.W. 750, 752.

By merely alleging that the taxes were paid under protest, Ash Realty fails to meet the requirements of the common law cause of action. There must be evidence of compulsion, 64 C.J.S. Municipal Corporations § 2069b. Ash Realty made no allegation of threatening levy by the sheriff of the other elements that the common law requires. Ahs Realty has only pleaded the allegations requisite to the statutory action described by sec. 74.73(1), Stats.

It is apparent therefore that no common law cause of action has been pleaded or now can be pleaded by the appellant.

Whatever rights he has are those that are conferred upon him by statute. The statute provides that 'every action to recover any money so paid shall be brought within one year after such payment and not thereafter.' Appellant contends, however, that the annexation was wholly void and that any attempt to levy and collect a tax was a mere usurpation and that as to wholly void taxes, no statute of limitations is applicable.

We are in disagreement, at least insofar as this proposition would apply here; we cannot agree that the action of Brown Deer was a 'mere usurpation' nor that the annexation was wholly void in the sense intended by the appellant.

A review of the previous cases involving this annexation shows that substantial doubt did exist as to the true status of this property. By the appellant's very pleading there is revealed the good faith doubt whether his property was at the time the tax was paid, in the City of Milwaukee of the Village of Brown Deer. At one point in the proceedings an order had been entered enjoining the Village of Brown Deer from exercising jurisdiction over the territory involved. Subsequently in Village of Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N.W.2d 340, this court affirmed the vacation of that order. It is clear from the statements in the briefs of both counsel that during period in question the Village of Brown Deer did exercise municipal jurisdiction. It cannot be said that the annexation attempted by Brown Deer was void or unlawful in the sense that the appellant urges. It attempted an annexation that apparently would have been in all respects valid, if one of the corporate petitioners had taken the appropriate internal action to authorize its offices to sign the petition. Despite competing claims, what Brown Deer attempted to do was lawful. The cases that appellant urges as precedent are of a different type. Trustees of Clinton Lodge v. Rock County (1937), 224 Wis. 168, 272 N.W. 5. To tax exempt property is unlawful in the sense that the local government is attempting to do what the Legislature has specifically forbidden. To attempt the annexation of non-contiguous property is unlawful in that no substantive right had been conferred upon the municipality to annex other than contiguous territory. Smith v. Sherry (1880), 50 Wis. 210, 6 N.W. 561. By law non-contiguous...