Holt Lumber Co. v. City of Oconto

• Decision Date: 14 March 1911
• Citation: 145 Wis. 500,130 N.W. 709
• Parties: HOLT LUMBER CO. v. CITY OF OCONTO ET AL.
• Court: Wisconsin Supreme Court

145 Wis. 500

130 N.W. 709

HOLT LUMBER CO.

v.CITY OF OCONTO ET AL.

Supreme Court of Wisconsin.

March 14, 1911.

Appeal from Circuit Court, Oconto County; Samuel D. Hastings, Judge.

Action by the Holt Lumber Company against the City of Oconto and its Treasurer. Judgment for defendants. Plaintiff appeals. Affirmed.

This action was brought to remove a cloud from the title to plaintiff's land, created by the assessment and levy of certain taxes upon its real estate in the year 1909, to pay for the construction of sewers proposed to be laid by the defendant city, on the ground that the proceedings of the common council and its officers in the assessment and levy of such taxes were illegal and void, and the taxes based thereon consequently illegal and void. The complaint alleges the corporate existence of the plaintiff and of the defendant city, and that the defendant Classon is city treasurer of the defendant city; that the plaintiff is the owner of the lands in question; that the taxes assessed against the real estate of plaintiff in said city for 1909 are $2,081.04; that the taxes levied upon personal property of plaintiff for 1909 in said city are $10,231; that in August, 1894, by ordinance No. 204, said defendant city was divided into sewer districts; that in May, 1895, by ordinance No. 212, ordinance No. 204 was amended; on the 3d day of September, 1895, the defendant city, in pursuance of section 72, c. 312, of the Laws of Wisconsin for 1893, and in compliance with the statutes of Wisconsin, passed and adopted ordinance No. 215, whereby said defendant city adopted as part of its charter law subchapter 20 (St. 1898, c. 40a) entitled, “Sewers”; that in the month of November, 1904, the defendant city passed an ordinance (No. 277) by the terms of which it adopted the sewer district plan for construction of sewers, and provided that the expense should be borne and paid out of the funds of the sewer district within which such sewer or sewers might be constructed; that on February 7, 1905, the defendant city adopted ordinance No. 280, dividing defendant city into sewer districts, which ordinance provided that the cost of construction and maintaining sewers (which shall include mains, intercepting and all street sewers, manholes, catchbasins, lantern holes, flush tanks, out-falls, and all work connected therewith, except house drain connections) should be borne as provided by ordinance No. 277; that afterwards defendant city constructed and maintained sewers in the sewer districts of said city in pursuance of ordinance No. 277, and paid for the same out of the sewer district funds; that the property of residents and property owners in each sewer district was taxed for the purpose of raising funds for the mains and other sewers laid and constructed in each respective sewer district; that plaintiff was assessed and paid taxes upon its property for such sewers under said district system in accordance with ordinance No. 277; that on October 5, 1909, the defendant city attempted to pass ordinance No. 318, which provided that “the cost of all main sewers hereafter constructed in the city of Oconto, except the cost of all catchbasins, overflow pipes and all temporary catch-basins, the cost of repairing and cleaning of all sewers and the expenditures for temporary work necessary to carry on the system of sewerage in the city of Oconto, shall be paid out of the general fund of the city of Oconto, the intention of this ordinance being that no expense of the construction of main sewers shall be paid by the abutting property owners or out of any sewerage district fund;” that said ordinance No. 318 attempted to repeal ordinance No. 277 and section 2 of ordinance No. 280 of defendant city, and attempted to repeal all ordinances conflicting with ordinance No. 318; that on November 30, 1909, the board of public works of defendant city made a report to defendant city, whereby it recommended that a levy of $4,014.40 be made out of the general fund of defendant city to cover the cost of main sewers to be constructed on certain designated streets; that said report was adopted and the tax of $4,014.40 levied upon the taxable property of defendant city, and the clerk instructed to extend the same upon the tax roll; that the report of said board of public works included not only main sewers, but the construction and extension and rebuilding of branch sewers, and the taking up of certain main sewers in defendant city and relaying the same with larger and different sewers; that said sum of $4,014.40 was assessed and levied upon the taxable property in defendant city, including the property of plaintiff, and constitutes a part of the so-called “contingent fund” upon the tax roll, which contingent fund amounts to $14,906.30; that the tax roll has been delivered to the defendant Classon, treasurer of defendant city, for collection, and that he threatens to collect and return said tax roll, if said taxes are not paid, as delinquent and unpaid; that said tax constitutes a cloud upon the title to plaintiff's real estate; that said taxes amounting to $4,014.40 so forming a part of the contingent fund were unlawfully levied, for the reason that the defendant city had theretofore elected and, by ordinance duly passed and adopted, determined that all the costs and expenses for the laying and construction of main and other sewers in the defendant city should be borne and paid out of the sewer districts within which such sewers were laid, and that the city had no power to thereafter change the system of paying for the construction and maintaining of main and other sewers, and to assess and levy taxes for and to pay the same out of the general or contingent fund of defendant city; that plaintiff is ready and willing to pay its just portion of the taxes legally and lawfully levied and assessed against its real estate; that the defendant city and its officers threaten and are about to carry into effect the recommendation of the board of public works for the construction of main and other sewers above mentioned; that if defendant city proceeds to construct such sewers it will result in imposing upon the lands of the plaintiff the unlawful burden and taxes for the payment of sewers in other sewer districts than those in which the plaintiff has property, and which such sewer districts have heretofore constructed and paid for the main and other sewers within such district or districts out of the sewer district fund of such district.

The plaintiff prays that the city be enjoined from collecting said taxes, and that such taxes be declared null and void, and the cloud created thereby be removed, and ordinance No. 318 be adjudged null and void; that the court ascertain the amount of taxes lawfully assessed upon the plaintiff's real estate, and that plaintiff have general relief. The defendants demurred to the complaint for want of facts sufficient to constitute a cause of action. From the order sustaining such demurrer, this appeal was taken.

Allan V. Classon and Eastman & Martineau, for appellant.

P. H. Lynch, Gill & Chase, and V. J. O'Kelliher, for respondents.

KERWIN, J. (after stating the facts as above).

The material allegations of the complaint, in so far as they form a basis for the plaintiff's alleged right to recover, are set out briefly in the statement of facts. The learned trial judge in sustaining the demurrer wrote an opinion which is in the record, in which he discusses various provisions of subchapter 20 of the general charter law (St. 1898, c. 40a) as they bear on the ordinances passed by the defendant city, and arrives at the conclusion that the complaint states no cause of action, and we are of the opinion that the conclusions reached by the trial judge are correct.

Two main contentions are made by appellant's counsel as grounds for reversal of the order appealed from: (1) That section 925--208 being the first section of subchapter 20 is an option law, and that when the city exercises its option thereunder and elects one of the methods of payment for sewers, its power in that regard is exhausted, and it cannot change to any of the other methods provided therein; and if the statute permits the change it is unconstitutional. (2) That if it be held that section 925--208 is not an option law, and that the statutes in question are constitutional, there is no authority for payment for any sewer work other than for main sewers, and that the tax is void, because levied for sewers other than main sewers.

The defendant city was divided into sewer districts under its special charter in May, 1895, by ordinance No. 212, and subchapter 20 of the general charter was adopted in September, 1895. In November, 1904, ordinance No. 277 was passed, which provided that the costs of all sewers should be paid out of the funds of the sewerage district within which the sewer or sewers may be constructed. In February, 1905, the defendant city passed ordinance No. 280, which divided the city into sewer districts, and amended the prior ordinance and confirmed the method of paying for constructing and maintaining sewers as provided by ordinance No. 277. Afterwards, and in October, 1909, ordinance No. 318 was passed, which provided that the costs of all main sewers thereafter constructed, except the cost of catchbasins, overflow pipes, and temporary catchbasins, the cost of repairing and cleaning sewers, and the expenditures for temporary work necessary to carry on the system of sewerage, should be paid out of the general fund; the intention being that no expense for the construction of main sewers should be paid by abutting property owners, or out of any sewerage district fund.

It is strenuously insisted by counsel for appellant that the defendant city had no power to pass ordinance No. 318, because it had no authority to change the method of payment for sewers; its power in that regard having been exercised by the passage of a prior ordinance was...