City of Appleton v. Bachman

• Citation: 197 Wis. 4,220 N.W. 393
• Parties: CITY OF APPLETON v. BACHMAN ET AL. RICHARD ET AL. v. OUTAGAMIE COUNTY ET AL.
• Decision Date: 18 June 1928
• Court: United States State Supreme Court of Wisconsin

197 Wis. 4

220 N.W. 393

CITY OF APPLETON

v.BACHMAN ET AL.

RICHARD ET AL.

v.OUTAGAMIE COUNTY ET AL.

Supreme Court of Wisconsin.

June 18, 1928.

Appeal from a judgment of the Circuit Court for Outagamie County; Robert S. Cowie, Circuit Judge.

Action by the City of Appleton, a municipal corporation, against Fred E. Bachman, Outagamie County, a municipal corporation, and Marie Ziegenhagen; and action by George T. Richard and another against Outagamie County and Marie Ziegenhagen, County Treasurer. From adverse judgments in each case the defendants, except the defendant Bachman, appeal. Judgment in each case reversed, and cause remanded, with directions to dismiss the complaint.--[By Editorial Staff.]

While the above-entitled actions were not consolidated nor tried together, they involve to a large extent the same state of facts, and for the sake of brevity and convenience the controlling facts will be stated and the cases considered together, although there will be a mandate in each case.

On December 30, 1926, the plaintiff Richard, as resident taxpayer of the city of Appleton, began suit against Outagamie county and Marie Ziegenhagen, county treasurer, in which he sought to have a levy of $305,195.40 made by the county board as a general county tax declared null and void; that if any part of the levy was declared to be valid, the court determine the amount of tax illegally levied and constituting an apparent lien upon plaintiff's land; (2) that the cloud created upon plaintiff's title by any void tax be removed, and that the defendant county treasurer and their officers and agents be perpetually restrained from collecting any part of said tax declared void.

On March 18, 1927, the city of Appleton began a suit to have the annual tax levy made by the county board of Outagamie county in November, 1926, as amended at the December, 1926, meeting, declared fraudulent and void and for a permanent injunction restraining the county from in any way taking proceedings against the city or any of its officers to compel the city of Appleton or its treasurer to pay to Outagamie county the sum of $100,483.00, which the city deemed had been unlawfully and illegally exacted from the taxpayers resident within the corporate limits of the city of Appleton. The defendant Ziegenhagen was county treasurer of Outagamie county.

In the Richard suit there was a demurrer to the complaint, which was overruled, and the defendants answered in both actions. There was a trial, judgment in favor of the plaintiffs in each action, from which the defendants appeal.John A. Lonsdorf, Dist. Atty., of Appleton (Bradford & Bradford, of Appleton, of counsel), for appellants.

Albert H. Krugmeier, of Appleton (Joseph Witmer, of Appleton, of counsel), for respondents.

ROSENBERRY, J.

The facts set out in the complaints and found by the court present many matters which are not necessary to a consideration and determination of the interesting and fundamental questions raised upon the appeals here. We shall state only such facts as are necessary to present the questions decisive of the controversy.

Section 59.04, Wis. Stats., provides:

“(1) Every county board shall meet on the Tuesday next succeeding the second Monday of November in each year at the county seat for the purpose of transacting business as a board of supervisors. * * *

(2) A special meeting of any county board shall be held only upon a written request of a majority of the members thereof addressed and delivered to the county clerk, and specifying the time and place of such meeting. The time shall not be less than one week from the delivery of such request to the clerk.”

Section 70.61 provides:

“The county clerk of each county shall annually, before the second Tuesday of November, prepare a statement of the latest statistics of population and such other statistical information as he may have, and lay the same * * * before the county board at their annual meeting in November,” etc.

Section 70.62:

“The county board shall also, at such meeting, determine by resolution the amount of taxes to be levied in their county for county purposes for the year, and also the amount to be raised by tax in each town for the support of common schools for the ensuing year” etc.

The county board of Outagamie county met for its annual meeting, which had been adjourned, in accordance with the statute, on November 18, 1926. At this meeting the county board levied for the year 1927 taxes amounting in the aggregate to $851,530.77. Among the taxes levied was a tax: (a) $81,000 for payment of principal and interest upon highway bonds; (b) $29,250 for county and town aid roads; (c) $210,945.40 for highway purposes; (d) two-mill direct tax of $173,665.33 for county bridge and road fund; and (e) $65,000 for general county tax.

Pursuant to the statute, a special meeting was called, and on December 10, 1926, the board rescinded the resolution levying $210,945.40 as a general highway tax, $29,250.00 for county and town aid roads, $68,000 for the payment of principal of certain bonds, and $13,000 for interest, because the road and general highway tax was in excess of the limitations of the statute and the $68,000 levy was an error. The board then made a new levy as follows: $29,250 to meet the petition of town, city, and village for road aid, $210,295.40 as a general highway tax, and $305,195.40 as a general county tax, making a total levy of $783,570.77; the difference in the totals being $68,000, the amount of the error.

[1] It is argued on behalf of the plaintiffs that the county board having met at the time designated in the statute and discharged its statutory duty by levying the county taxes, it could not thereafter, at a special meeting, make a new levy.

What may the county board do at a special meeting? Section 59.07, relating to general powers of the board, provides:

“The county board of each county is empowered at any legal meeting to: * * *

(5) Apportion and order the levying of taxes as provided by law, and direct the raising of such sums of money as may be necessary to defray the county charges and expenses and all necessary charges incident to or arising from the execution of their lawful authority. * * *

(18) Perform all other acts and duties which may be authorized or required by law.”

[2] It is apparent from the language of the statutes that a special meeting being in the language of the statute a legal meeting, any of the powers which the board possesses may be exercised at a special as well as at a regular meeting unless otherwise specifically provided.

[3] By the provisions of section 70.62 already quoted, the county board is required at the meeting held on the second Tuesday of November to “determine by resolution the amount of taxes to be levied in their county for county purposes for the year.” It is argued that the language of this statute is mandatory, and that if the county board fails or neglects to perform its duty, and more especially in this case having once performed it, or undertaken to perform it, its power in that respect is exhausted and it may not thereafter exercise the power.

By section 70.63 the county clerk is required within 10 days after the assessment of values by the county board, which is to be done at the meeting held on the first Tuesday after the first Monday in November, to “certify to the clerk of, and charge to, each town, city and such village excepting in cities of the first class, the amount of each and all such taxes so apportioned to and levied upon the same.”

[4] In the course of orderly procedure it is quite apparent that the duty of levying the tax should be expeditiously performed. While there may be a review of the apportionment made by the county board under the provisions of section 70.64, the taxes for the current year are collected in accordance with the apportionment as made and the error, if any, corrected the following year in accordance with the provisions of subdivision (11). When there is no substantial reason why the...