Duluth, S. S. & A. Ry. Co. v. Douglas Cnty.

• Decision Date: 25 April 1899
• Citation: 79 N.W. 34,103 Wis. 75
• Court: Wisconsin Supreme Court
• Parties: DULUTH, S. S. & A. RY. CO. v. DOUGLAS COUNTY.

103 Wis. 75

79 N.W. 34

DULUTH, S. S. & A. RY. CO.

v.DOUGLAS COUNTY.

Supreme Court of Wisconsin.

April 25, 1899.

Syllabus by the Judge.

1. In the absence of a law making the county clerk's record of the proceedings of a county board the only evidence thereof, a transaction by the board, not entered upon its minutes, may be established by parol.

2. A county board may delegate purely ministerial or executive power to a committee, and its action, within the scope of such delegated power, will bind the county.

3. A county board, having determined, on condition, to appeal from a judgment against it to the supreme court, may properly delegate to a committee of its members authority to investigate as to the existence of the condition and to further act in regard to the appeal according to the wish of the board; and the delegated power to cause the appeal to be taken in such a case carries with it, by implication, power to employ an attorney for that purpose, the district attorney of a county not being obliged to attend to its litigation in the supreme court.

4. The statute of this state exempting from taxation property of railroad companies necessarily used in operating their roads in this state applies only to such property as reasonably satisfies the call of the statute in regard to actual use for railway purposes, not to property held in contemplation of future use.

5. The rule that the limit of the exemption of railway property from taxation is the limit of its right to take property for railway purposes by the exercise of the right of eminent domain is to be understood thus: Under a statute which makes use for railway purposes a condition of the exemption, the limit of the right to take property in invitum bounds the extent to which the exemption can go, while the condition as to present use determines the present limit of the exemption.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by the Duluth, South Shore & Atlantic Railway Company against Douglas county and others. Judgment for plaintiff, and the county appeals. Reversed.

Action to avoid a tax of $1,231.08 levied on lands of the plaintiff by the proper officers of the city of Superior, Wis., in the year 1895. The tax was contested under section 1038, Rev. St., exempting from general taxation the property of railway companies necessarily used in operating their roads. In 1888 a tract of land 300 feet wide and about 5,500 feet long, containing 38.568 acres, lying at right angles with, and extending about 1,700 feet into, the bay of Superior and to the dock line thereof, was conveyed to the president of the plaintiff corporation in trust for its use solely to meet future needs for railway and water traffic. In 1893 the land was conveyed to plaintiff and it has ever since owned and held the same exclusively for contemplated use for terminal facilities for its line of road. It has no other terminal facilities for its railway system at the head of the lakes. Such facilities are necessary to a complete railway system in order to enable the corporation to handle business at its western terminus. Except as hereinafter stated, the entire tract of land mentioned, at the time the tax was levied, was vacant and unoccupied, and it had been that way since its acquirement by the corporation, though all the time held in good faith for terminal facilities for plaintiff's road. Plaintiff has all the time contemplated improving and using the land as soon as its financial circumstances would reasonably permit. The use of the land in 1895, when the tax was levied, was necessary for the most convenient and profitable operation of plaintiff's railway system and the conduct of its business, but lack of funds interfered with its preparation for such use and has operated the same way ever since. At the time of the trial, which was three years subsequent to the levy of the tax, plaintiff was still uncertain as to when it would be able to improve, occupy and use the land. Since 1893 a small strip of land about 120 feet wide and about 1,500 feet long, containing 3.898 acres, lying in the southwest corner of the larger tract, has been partially occupied and used, there being three railway tracks along the westerly side thereof and a roundhouse near the south end. Such small parcel of land is of ample size for all the improvements located thereon, it being actually occupied for only about one-third of its width except at the extreme south end. The tax in controversy was levied upon that portion of the land wholly unoccupied down to the time of the trial. The court below, on the foregoing facts and others showing that the contemplated terminal facilities for which the land was acquired were a necessary adjunct to plaintiff's railway system in order to enable it to fully perform its duties as a transportation corporation at the time the tax was levied, though not actually so used because of the financial condition of plaintiff, held as a matter of law that the land was exempt from taxation and rendered judgment accordingly, from which this appeal was taken.

When the appeal was called for argument in this court a motion was made to dismiss, based on an affidavit of the county clerk and one by an employé in the county clerk's office to the effect that there were no proceedings of record directing or authorizing the appeal, and that in their judgment no action in that regard was ever taken by the county board; also an affidavit by one of the attorneys for respondent, to the same effect, made on information and belief. The motion was opposed by affidavits of seven of the members of the county board to the effect that the subject of taking the appeal was discussed by the members of the board in session September 26, 1898; that it was determined at that time that such appeal should be taken, subject, however, to the wishes of the officers of the city of Superior, where the land was located, and that the matter was referred to the finance committee with power to carry out the views of the board. There was an affidavit by the chairman of the finance committee to the effect that, pursuant to the action of the county board had as stated, such committee consulted with the officers of the city of Superior and directed Mr. H. H. Grace to appeal the cause to this court. There was also an affidavit by Mr. Grace and one by Mr. Sloan, the district attorney, corroborating the affidavit of the chairman of the finance committee, and to the effect that the appeal was taken pursuant to the committee's direction. There was also an affidavit by the city attorney of the city of Superior to a similar effect.H. H. Grace and H. C. Sloan, for appellant.

Catlin, Butler & Lyons, for respondent.

MARSHALL, J. (after stating the facts).

The fact that there is no record of any proceedings of the county board of the appellant, directing the taking of this appeal, is by no means necessarily fatal to it. Proceedings of county boards in such matters are often conducted in an informal manner and the records thereof loosely kept or not kept at all. It is not a subject affected by any law making a record the only evidence of it; therefore if the board acted in the matter, it appearing that written evidence thereof was not preserved, the facts in that regard may be established by parol. Dill. Mun. Corp. § 300; Jones, Ev. § 203. If a record were kept, it would be the best evidence of the proceedings, but the omission by the proper officers to preserve written evidence of their doings does not make the subsequent proceedings, taken in good faith pursuant thereto, invalid. It follows that the proof presented here on the motion to dismiss the appeal, showing that the county board considered the subject and acted in the matter, amply establishes that it was determined that an appeal should be taken if desired by the officers of the city of Superior, and that it was referred to the finance committee of the board with power to consult with the city officers and to further act. The power with which the committee were clothed was purely ministerial and executive, so we need not spend time to vindicate the authority of the board to delegate it. Municipal boards commonly act through committees in such matters, and without judicial condemnation that we are aware of. The committee, under the circumstances, was the mere instrument of the board to carry out or execute its will, not to pass upon and determine a matter resting in its discretion.

There can be no controversy as to the authority of the committee to employ Mr. Grace to take the appeal, when it is conceded that it possessed power to direct the appeal to be taken. It was not the duty of the district attorney to attend to the litigation in this court, therefore, as a matter of course, authority to direct the appeal to be taken carried with it, by implication, power to employ the usual means to that end.

The result of what has been said is that the motion to dismiss must be denied with motion costs.

The question for consideration on the appeal may be stated as follows: Is land, acquired and held by a railway corporation in good faith solely for railway purposes, and necessary to enable it to perform the duties incident to its organization to the best advantage, and which it intends to put to actual use in the conduct of its business in the near future, no definite time being fixed therefor, the land since its acquirement having remained wholly unoccupied largely because of want of financial ability of the corporation to improve the same, and still awaiting use on that account, exempt from taxation, though within limits that the company might presently go by the exercise of the power of eminent domain in order to obtain land for its railway purposes? Or, to state the proposition more concisely, by leaving out the particular circumstances that characterize this case, does the exemption from taxation of lands held for railway purposes, under the...