Burlington Northern R. Co. v. City of Superior

• Decision Date: 07 November 1989
• Docket Number: No. 88-1794,88-1794
• Citation: 153 Wis.2d 206,450 N.W.2d 486
• Parties: BURLINGTON NORTHERN RAILROAD CO., and Burlington Northern Dock Corporation, Plaintiffs-Appellants, v. CITY OF SUPERIOR, Wisconsin, Defendant-Respondent. d
• Court: Wisconsin Court of Appeals

Page 486

450 N.W.2d 486

153 Wis.2d 206

BURLINGTON NORTHERN RAILROAD CO., and Burlington Northern Dock Corporation, Plaintiffs-Appellants, v.CITY OF SUPERIOR, Wisconsin, Defendant-Respondent.^dNo. 88-1794.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 12, 1989.

Opinion Released Nov. 7, 1989.

Opinion Filed Nov. 7, 1989.

Robert A. Schnur and Ellen M. Pokrass of Michael, Best & Friedrich, Milwaukee, for plaintiffs-appellants.

James F. Lorimer and Bonnie A. Wendorff of Boardman, Suhr, Curry & Field, of Madison, for defendant-respondent.

Before CANE, P.J., and LaROCQUE and MYSE, JJ.

CANE, Presiding Judge.

Burlington Northern Railroad Company and Burlington Northern Dock Corporation(collectively Burlington Northern) appeal an order awarding them post-judgment interest at a rate of five percent, rather than at the requested twelve percent.The City of Superior owes interest on taxes it collected from Burlington Northern and that were later found to be unconstitutional in Burlington Northern, Inc. v. City of Superior, 131 Wis.2d 564, 388 N.W.2d 916(1986)(Burlington Northern I ).The trial court awarded post-judgment interest pursuant to sec. 74.73(1r), Stats.(1985-86).¹However, since that decision, this court has held that sec. 74.73 does not apply to the refund of taxes that have been declared unconstitutional.Burlington Northern, Inc. v. City of Superior, 149 Wis.2d 190, 205, 441 N.W.2d 234, 241(Ct.App.1989)(Burlington Northern II ).We reverse the trial court and remand for an order directing post-judgment interest payments at the twelve percent rate established by sec. 815.05(8), Stats.

The lengthy procedural history of this case is adequately set out in the two published opinions previously cited.The case involves taxes paid from 1977 through 1985, and the city's liability for the tax refunds and the prejudgment interest is not contested.We are asked to address only the rather narrow question of what is the correct rate of interest after judgment when a tax is declared unconstitutional.Questions concerning the application of a statute to a set of facts, and questions as to which of two statutes apply, are questions of law for which this court owes no deference to the trial court's decision.In re J.S., 137 Wis.2d 217, 220, 404 N.W.2d 79, 81(Ct.App.1987).

The trial court held that the five-percent rate referred to in sec. 74.73(1r) applied, ² relying largely on Owens-Illinois Inc. v. Town of Bradley, 132 Wis.2d 310, 392 N.W.2d 104(Ct.App.1986).Owens-Illinois, however, involved the collection of taxes on property that was later found to be exempt from taxation.Id. at 313-14, 392 N.W.2d at 106.That situation is considered an "unlawful" tax within the meaning of sec. 74.135, ³andsec. 74.73(1r) explicitly governs.

On the other hand, this case deals with an unconstitutional tax, which is not an unlawful tax within the meaning of sec. 74.73.SeeBurlington Northern II, 149 Wis.2d at 205, 441 N.W.2d at 241.Because this situation does not fall within the stated parameters of sec. 74.73, we must look outside the statute to find the applicable rate of post-judgment interest.⁴

Section 815.05(8) states in relevant part: "[E]very execution upon a judgment for the recovery of money shall direct the collection of interest at the rate of 12% per year on the amount recovered from the date of the entry thereof until paid."The language of the statute is unambiguous.It applies to "every ... judgment."In contrast, we held in Owens-Illinois that the more specific statute controlled for the refund of certain defined "unlawful" taxes that were, by the language of the statute, to be refunded with interest at five percent until paid back by the government.Id.132 Wis.2d at 317, 392 N.W.2d at 107.That type of specific statute, however, does not exist in the case of refunds of unconstitutional taxes, as opposed to unlawful taxes.

The city disagrees and argues that sec. 66.09 is controlling since it specifically applies to governmental bodies.⁵Although sec. 66.09 does not prescribe a rate of post-judgment interest, the city asks us to import the legal rate of five percent set out in sec. 138.04.⁶

The two cases cited by the city, Boldt v. State, 101 Wis.2d 566, 305 N.W.2d 133, cert. denied, 454 U.S. 973, 102 S.Ct. 524, 70 L.Ed.2d 393(1981), andCity of Milwaukee v. Firemen Relief Ass'n, 42 Wis.2d 23, 165 N.W.2d 384(1969), are simply not applicable to the case at hand.Both cases involved instances where the governmental units attempted to avoid the payment of interest altogether.The cases hold that the government must pay interest on the judgment like any other party, and that the rate was the legal rate unless the government was specifically exempted or another interest rate applied.Boldt, 101 Wis.2d at 582-83, 305 N.W.2d at 143;Firemen, 42 Wis.2d at 39-40, 165 N.W.2d at 393.Neither case considered or decided whether sec. 815.05(8) applies to governmental bodies as judgment debtors.

Conflicts between statutes are not favored and will not be held to exist if the statutes may otherwise be reasonably construed.Law Enforce.Stds. Bd. v. Village of Lyndon Station, 101 Wis.2d 472, 490, 305 N.W.2d 89, 98(1981).Section 66.09 mentions nothing about the rate of interest to be paid, and therefore the twelve percent rate of post-judgment interest set forth in 815.05(8) applies.

Order reversed and cause remanded.

d Petition for Review granted.

1Section 74.73 was substantially changed by the legislature's repeal and reenactment of ch. 74, effective January 1, 1989.The new provisions are not applicable to the case at hand and, unless otherwise noted, all references to statutes are to the 1985-86 version.

2Section 74.73 states in part:

Recovery of unlawful taxes and overassessments.(1g) In this section, "unlawful tax" means a tax in respect to which one or more errors under s. 74.135(1) to (6) were made.

....

(1r) Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the ... city ... which collected such tax in the manner prescribed by law for filing claims in other cases.If it appears 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 unlawful taxes have been complied with, the ... common council may allow and the ... city ... treasurer shall pay such person the amount of the claim found to be unlawful and excessive.If any ... city ... fails or refuses to allow the claim, the claimant may have and maintain an action against the same for the recovery of all money so unlawfully levied and collected,...