Dalrymple v. City of Milwaukee

• Decision Date: 18 October 1881
• Citation: 53 Wis. 178,10 N.W. 141
• Parties: DALRYMPLE v. CITY OF MILWAUKEE AND OTHERS.
• Court: Wisconsin Supreme Court

53 Wis. 178

10 N.W. 141

DALRYMPLE

v.CITY OF MILWAUKEE AND OTHERS.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Milwaukee county.

The complaint alleges that certain lots of the plaintiff, in the city of Milwaukee, were sold by the city treasurer, in January, 1876, for the non-payment of the city taxes thereon for the year 1875, and certain assessments of benefits thereon made in the same year, by the board of public works, for street improvements. The certificates of sale were issued to the city, which was the purchaser at such sale, and were afterwards assigned by the city to the defendant Nash. February 23, 1881, Nash gave notice that he would apply to the defendant, the city treasurer, on May 25, 1881, to issue deeds pursuant to such certificates. The complaint also contains averments of fact which, it is claimed, show that the assessment for street improvements was irregularly made, and is void. It is also averred therein that before this action was commenced the plaintiff redeemed his lots from the state, county, and general city taxes thereon by paying the same, together with all charges on account thereof. The prayer for relief is as follows: “Wherefore, the said plaintiff prays judgment that the said taxes, tax sales, and the said several certificates of tax sales may be declared null and void; and that said defendants city of Milwaukee, and its said treasurer, Albert Geilfuss, and his successors in office, may be temporarily, and until the trial and hearing of this cause, and thereafter, perpetually enjoined and restrained from issuing any tax deeds upon any of the lots and property in this complaint described upon any of said certificates; and that said defendant Charles D. Nash may likewise be restrained and enjoined from applying for or receiving such deeds, and from conveying or disposing of said certificates, or any of them, but that he may be ordered and decreed to surrender the same to be cancelled; and that said plaintiff may have such other and further relief as may be just, together with the costs of this action.”

Upon the verified complaint an injunctional order was granted to the plaintiff on the twenty-fourth day of May, 1881, restraining defendants from issuing or receiving any tax deeds upon any of the certificates mentioned in the complaint until the final hearing of the action. The defendant Nash demurred upon the grounds-- First, that the action was not commenced within the time limited by law, as provided by chapter 334 of the laws of the state of Wisconsin for the year 1878; nor within nine months after the making of the sale; nor within nine months after the dates of the several certificates in said complaint set forth and alleged; nor within nine months after the publication of said act. Second, that the action was not commenced within the time limited by law, as provided by chapter 309 of the laws of the state of Wisconsin for the year 1880; nor within one year from the date of the tax sales in said complaint alleged; nor within one year after said act took effect. The defendants city of Milwaukee and Geilfuss de murred upon the same grounds as above, and also because the complaint does not state facts sufficient to constitute a cause of action. On the twenty-third day of June, 1881, the defendants moved the court to vacate and dismiss the injunctional order granted to the plaintiff; which motion was granted on the twenty-seventh day of June, 1881, and an order entered dissolving the injunction; from which order the plaintiff appeals to this court.Markham & Noyes, for appellants.

Jenkins, Elliott & Winkler and J. R. Brigham, for respondents.

LYON, J.

The demurrers to the complaint go to the whole cause of action, and although the record contains no ruling upon them by the circuit court, it is manifest that if they are well taken the injunction was properly dissolved. Section 7, c. 334, Laws 1878, is applicable to a tax certificate issued in January, 1876, and prescribes a limitation of nine months, after publication of that act, within which time an action to cancel such certificate must have been commenced. The act was published March 25, 1878. But this act, except section 14, was repealed by the Revision of 1878, (section 4978,) and the above limitation does not seem to have been re-enacted therein. Mead v. Nelson, 52 Wis.402, [8 N. W. REP. 895.] Yet by virtue of section 4976, Rev. St., the limitation continues in force, notwithstanding the repeal of the act of 1878, and the time allowed by law to commence an action to cancel a tax certificate issued in 1876, expired December 25, 1878. Mead v. Nelson, supra; Smith v. City of Janesville, 9 N. W. REP. 789. It may be observed that in the opinion of Mr. Justice Orton, in the former case, as published in the law periodicals, section 4976 is erroneously cited as section 4984.

It sufficiently appears in the complaint itself that this action was commenced after February 23, 1881, the date of the notice by defendant Nash that he would apply for deeds on the certificates. As matter of fact the record shows that it was commenced in May, 1881. While, on demurrer, the court will not look beyond the complaint to ascertain when the action was commenced, ( Smith v. Janesville, supra; Zagel v. Kuster, 51 Wis. 31,) because the demurrer is aimed at the complaint alone, no good reason is perceived why, on a motion to grant or dissolve an injunction, which goes to the equity of the case, the court should not consider the whole record for the purpose of ascertaining the real equities of the parties. We conclude, therefore, that if the certificates in question are tax certificates, within the meaning of the act of 1878, above cited, an action to cancel them was barred by that act when this action was commenced, and the injunction against issuing or receiving deeds thereon was properly dissolved. This brings us to the question chiefly argued on the hearing of the appeal, is a certificate issued on a sale of land for non-payment of an assessment of benefits for a street improvement, a tax certificate within the meaning of section 7, c. 334, Laws 1878, prescribing a limitations of actions to cancel tax certificates?

The section is as follows: “Every action or proceeding to set aside any sale of lands for the non-payment of taxes, or to cancel any tax certificate, or to restrain or prevent the issuing of any tax deed or any tax certificate, or to set aside and cancel a tax deed, shall be commenced within nine months after the making of such sale, date of such certificate, or recording of such tax deed, as the case may be, and not thereafter: provided, that in the case of sales, tax certificates, and tax deeds heretofore made, issued, or recorded, such action or proceeding, if not already barred, may be brought within nine months after the publication of this act, and not thereafter.”

1. Is such an assessment a tax? We are clearly of the opinion that the question must be answered in the affirmative. It was said in Knowlton v. Sup'rs, 9 Wis. 410, and repeated in Hale v. Kenosha, 29 Wis. 599, that, in a general sense, taxes are burdens or charges imposed by the legislative power of a state upon persons or property for public uses. In the latter case the distiuction is stated between assessments and “other kinds of taxation;” and the following statement of...