Marine Co. v. City of Milwaukee

• Decision Date: 19 November 1912
• Citation: 138 N.W. 640,151 Wis. 239
• Parties: MARINE CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

151 Wis. 239

138 N.W. 640

MARINE CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 19, 1912.

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by the Marine Company against the City of Milwaukee. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions to dismiss.

Action under section 1164, Stats. 1898, to recover the sum of $286.11 paid the defendant city, under protest, for a special assessment against plaintiff's property, which assessment it is claimed was void for certain irregularities therein not here necessary to specify. Section 1164, Stats., is as follows: “Any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, city or village may have and maintain an action against such town, city or village for the recovery of all money so unlawfully levied and collected of him. And every such action to recover back any such money hereafter paid shall be brought within one year after such payment and not thereafter; and in case any such town, city or village shall have paid a judgment recovered in any such action, after having paid over to the county treasurer the state and county tax levied and collected as part of such unlawful tax, such town, city or village shall be credited by the county treasurer, on the settlement with the proper treasurer for the taxes of the ensuing year, the whole amount of such state and county tax so paid into the county treasury; and the county treasurer shall also be allowed by the state treasurer the amount of state tax so illegally collected and paid in his settlement with the state treasurer next after the recovery of such judgment and collection thereof; and if any part of such unlawful tax shall have been paid over to any school district before the payment of such judgment such town shall charge the same to such district, and the town clerk shall add the same to the taxes of such school district in the next annual tax; provided, however, that no action shall be maintained under the provisions of this section unless it shall be made to appear to the court that the plaintiff has paid more than his equitable share of such taxes.”

A special assessment certificate was issued to the contractor pursuant to section 13 of chapter 7 of the city charter. Said section provides that the certificate may be paid to the city treasurer; that the city treasurer shall receive the amounts paid on such certificates and hold the same for the benefit of the owners thereof, and such owners shall be entitled thereto on producing and surrendering the certificate to be canceled. Plaintiff paid the sum in question on the 29th day of January, 1910. On the 17th day of February of the same year, the city treasurer paid the amount to the holder of the certificate, who delivered it up to be canceled pursuant to the charter provision. This action was begun January 11, 1911. At the close of the plaintiff's case, the defendant moved, alternately, for a nonsuit, or, if the court was of the opinion that the defendant was not entitled to a nonsuit, and that the tax and the assessment upon which the tax was paid were either of them void for a reassessment under the provisions of section 1210d, e, f, and g, of the Stats. The motions were denied by the court. The defendant offered no evidence, and the court, after making certain findings of fact relative to the assessment, held (1) that the defendant altered and changed the grade of the street in question without legal authority, and assessed the sum of $286.11 against the real estate of the plaintiff for the work done in consequence of such change of grade, without legal authority so to do; and (2) that plaintiff is entitled to judgment against the city for said sum of $286.11, with interest, together with the costs of the action. From a judgment entered accordingly, the defendant appealed.

Daniel W. Hoan, City Atty., and Clifton Williams, Special Asst. City Atty., both of Milwaukee, for appellant.

Frank B. Van Valkenburgh, of Milwaukee, for respondent.

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

[1] This action is brought under section 1164, Stats. 1898, to recover money paid to the city, under protest, for a special paving tax assessed on plaintiff's lot. It is claimed that the sum, or at least a portion thereof, so paid was really assessed and collected for an illegal change in the grade of the street, and not for paving the same. The question arises, Does the statute apply to special improvement taxes? The word “tax” is generically broad enough to include special assessments, and whether or not it does so in a statute must be gathered from its context and the legislative intent, as ascertained from the general scheme of the act and the cognate acts of which it is designed to become a part. This statute appears under the subhead of “miscellaneous provisions” in that part of chapter 49 relating to the assessment and collection of general taxes. It is followed by the subhead “the assessment and collection of special taxes.” It will be observed that the section provides that in case any town, city, or village shall have paid a judgment recovered in any such action, after...