Hayes v. Douglas Cnty.

• Decision Date: 17 December 1895
• Citation: 92 Wis. 429,65 N.W. 482
• Parties: HAYES v. DOUGLAS COUNTY ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 429

65 N.W. 482

HAYES

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Cross appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Hiram Hayes against Douglas county and others. From the judgment, both parties appeal. Reversed on both appeals.

This is an action to set aside certain taxes and assessments, and a tax sale and tax certificate, in which the taxes and assessments resulted. The tax certificate is upon 80 acres of unplatted land, in the city of Superior, owned by the plaintiff, and described as the E. 1/2 of the N. E. 1/4 of section No. 23, in township No. 49 N., of range No. 14 W. In the year 1892 this tract of land was sold by the treasurer of Douglas county, for taxes and assessments which were delinquent upon the tax roll for the city of Superior for 1891, amounting to $9,500.14. The common council of the city of Superior, by an ordinance of November 4, 1891, levied a city tax of $249,000 upon the taxable property of the city. This levy was based, in part, upon estimates furnished by the board of public works and the city comptroller, and included a general item of $61,000, designated as “general fund,” without further specification of particular purpose or purposes for which it was levied, nor items of which it was composed, and was not included in the estimates so furnished. This item of the general city tax was held by the circuit court to be unauthorized by the city charter, and illegal. The portion of this general tax which was carried out against the plaintiff's land, and included in the sum for which it was sold, was found to be $421. This sale also included a county tax of $100 to pay the expense of placing some blocks of Douglas county stone in the Wisconsin Building at the Columbian World's Fair. This item was also held to be unauthorized and illegal. It was found that, of this item, 52 cents were carried out and charged to the plaintiff's lands. There was also included in the sum so carried out and charged against the plaintiff's land the sum of $4,581.32, the sum of several assessments for street improvements, and installments of certain improvement bonds which had been issued to pay for other street improvements. These were an installment of the Belknap avenue improvement bonds, $1,972.10; one installment of Grand avenue improvement bonds, $125; assessment for grading Hill avenue, $1,438.62; for grading Ritchie avenue, $777.96; for grading Belknap avenue, $267. Of these items, those for the Grand avenue improvement and for the grading of Belknap avenue were incurred under the city charter of 1889; the others, under the charter of 1891. Under the former charter, street improvements were “chargeable to the lots or parcels of land fronting or abutting upon such street or alley, in proportion to the benefits accruing to such lots or parcels of real estate by reason of such improvement.” Laws 1889, c. 152, § 143. Under the latter they were “chargeable to the lots or parcels of land benefited thereby, in proportion to the benefits secured thereto.” Laws 1891, c. 124, § 117. In neither case are the benefits assessed to exceed the benefit actually accruing to each tract or parcel by such improvement. The plaintiff's lands are bounded on the north by Belknap avenue, on the east by Hill avenue, on the south by Ritchie avenue, on the west by an unplatted 80-acre tract, owned by the Land & River Improvement Company. It nowhere abuts upon or touches Grand avenue. In the year 1890 the city of Superior graded Grand avenue. This avenue runs diagonally across section 23. But it nowhere touches appellant's land, although it runs across a corner of the N. E. 1/4 of the section. Benefits are assessed against the entire N. E. 1/4 by that description. An improvement bond, covering the entire quarter section, was issued and sold. The sum of $125.64 is included in the tax included in the tax roll of 1891, carried out against the plaintiff's land to pay the part of one installment on the improvement bond, which the city clerk estimated to be the share appropriate to plaintiff's land. It is claimed that, as to this assessment, the action is barred, because not begun before the issuing of the improvement bond, under a provision of the charter (section 137). This assessment the circuit court held invalid, on the ground that plaintiff's land, having no frontage upon the improvement, was not liable to assessment. In the year 1891 the city paved Belknap avenue, and assessed the whole cost of the improvement upon the lands fronting and abutting upon the avenue. The sum of $7,585.26 was assessed against the north 40 acres of the plaintiff's tract of land, and there was no assessment against the south 40 acres. An improvement bond upon the north 40 was issued and sold to raise money to pay for the improvement. The sum of $1,972.20, intended as one installment of such improvement bond, is included in the sum for which the plaintiff's 80 acres were sold. It is also pleaded that the action is barred by section 137 of the charter, because not begun before the issuing of the improvement bond. The circuit court held this item good as a special assessment, though void as a bond against the city, because in excess of the constitutional limit to municipal indebtedness. In the same year Hill avenue was graded. For this improvement benefits were assessed, as in the other cases, to the owners of property fronting on the improvement, by the front foot. The amount assessed to the plaintiff's land as benefits of this improvement was $1,438.67. The same year Ritchie avenue was graded. For benefits of this improvement, there was assessed against the plaintiff's land $777.96.

The circuit court found that in each case the benefits were assessed upon the basis of frontage; that the amount assessed per front foot was determined by dividing the entire cost of the improvement by the number of feet frontage on both sides of that part of the street to be improved; that the rate of the assessment was uniform and equal; that the total amount of the sums assessed was equal to the actual total cost of the improvement; that before making such assessments of benefits, in each case, the board of public works “actually viewed the premises as required by the charter”; that there is no evidence that the board of public works did not use its best judgment in respect to such improvements; that in each case the notices given were directed only to the owners of property abutting upon the proposed improved part of the street. It is not certified, either by the board of public works or by the common council, nor found by the court, that the assessment by the frontage rule alone is in proportion to the benefits conferred by the improvements, nor that the assessment of benefits was made upon actual view and consideration of benefits to be conferred, nor, in any case, upon all the property benefited by the improvement; while, on the other hand, it is claimed for the plaintiff that the evidence shows that these assessments were made without an actual view or assessment, but were made with paper and pencil only, in the city engineer's office, by the front-foot rule, and were not made on the basis of actual benefits received, but on the theory that all abutting property was benefited equally, while, in truth, some parcels were more benefited than others of the same frontage. There was included in the certificate an excess of interest amounting to $41.18. The circuit court adjudged that the sale and certificate be set aside, upon the condition that the plaintiff pay all of the taxes included in the certificate except $421, the general fund tax; the World's Fair stone tax, $0.52; the Grand avenue grading bond tax, $125.64; and the excessive interest included in the certificate, $41.18,--leaving the amount to be paid $8,911.80, with costs to the plaintiff; costs, above disbursements, not to exceed $30. Both parties appeal,--the plaintiff from those parts of the judgment which require him to pay the amount of the assessments, and that which limits the amount of the costs to be recovered by him; and the defendants from that part of the judgment which exempts the plaintiff from the payment of the sums named.Spooner, Sanborn, Kerr & Spooner, for plaintiff.

Ross, Dwyer & Hanich, H. H. Grace, and H. C. Sloan, for defendants.

NEWMAN, J. (after stating the facts).

The point made against the general tax is not, indeed, that it was not authorized to be levied at all, but that it was not authorized to be levied in the manner in which it was levied, nor unless the item criticised--that is, the item “$61,000, general fund”--should be included, with a detailed statement of the items which enter into it, in the general statements required to be made and filed by the board of public works and by the city comptroller. It is urged that this detailed statement is a necessary prerequisite to a valid levy of the city's taxes. The statute which authorizes the levy of the city's taxes, and which directs the manner of this levy, is section 102 of the city charter, which is chapter 124 of the Laws of 1891. The section reads as follows: “On or before the first day of October in each year, the board of public works shall file with the city clerk a detailed statement of the amount of money that will be required for the ensuing fiscal year in their departments, and the city comptroller shall likewise file a statement of the amount required by the police department, fire department, and the remainder of the general fund, and for the purpose of paying interest for the ensuing year on the public debt and five per cent. of the principal thereof. The city clerk shall, not later than the second Tuesday of October, place such estimates before the city council for their consideration, and the council shall thereupon, by resolution, levy such sums of money as may be sufficient for the several purposes for which taxes are authorized,...