Milwaukee S.S. Co. v. City of Milwaukee

• Decision Date: 06 December 1892
• Citation: 53 N.W. 839,83 Wis. 590
• Parties: MILWAUKEE STEAMSHIP CO. v. CITY OF MILWAUKEE.
• Court: Wisconsin Supreme Court

83 Wis. 590

53 N.W. 839

MILWAUKEE STEAMSHIP CO.

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Dec. 6, 1892.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

Action by the Milwaukee Steamship Company against the city of Milwaukee to recover certain taxes assessed against and paid by plaintiff under protest. From a judgment for plaintiff, defendant appeals. Reversed.Conrad Krez, City Atty., and V. W. Seely, Asst. City Atty., for appellant.

Van Dyke & Van Dyke, for respondent.

ORTON, J.

The following facts are substantially stated in the complaint: The plaintiff is a corporation of this state, and is conducting the business of owning and employing steam and sail vessels in the general freighting business on the lakes and navigable waters connecting them, and at the times herein mentioned owned a large number of such vessels, and employed them in carrying cargoes of iron ore and other cargoes between points and places on said lakes. In its articles of organization, duly made and filed, it is certified and declared, in accordance with section 1772, Rev. St., that the name of said corporation shall be the “Milwaukee Steamship Company.” It shall be located in and have its principal office in the town of Lake, in Milwaukee county, but may transact business in and locate such branch office or offices as may be necessary or convenient, and shall be designated by the board of directors at such place or places in any part of the state, or any of the states. At all times herein mentioned the plaintiff had and maintained an office in a building in the town of Lake, in said county, outside the city of Milwaukee, upon which said building was a sign bearing the inscription, “Office of the Milwaukee Steamship Company,” at which office in said building the stockholders of the plaintiff held their annual meetings for the election of directors, and also such occasional special meetings as were necessary; and there the directors of said plaintiff held their annual meeting for the election of officers, but no other business of said company was ever transacted at said place. And at all other times said office remained in charge of John Saveland, the plaintiff's assistant secretary, who at all times resided in said building in which said office was located. The manner in which the plaintiff's vessels were employed was as follows: David Vance and Frank L. Vance, copartners under the firm name of David Vance & Co., and engaged in business as fire and marine insurance agents and vessel agents, had an office in the Third ward of said city of Milwaukee, in which was conducted the business of said firm of David Vance & Co. The said firm acted as the agents for plaintiff's vessels among others, and as such agents usually chartered them before the opening of navigation in each year for such season, or for a number of consecutive trips. The vessels so chartered have been principally employed in carrying iron ore from Escanaba and Ashland to Lake Erie ports, with occasional return cargoes of coal. The masters of said vessels attended to the details of the business of the same under their command, collecting freight, paying the usual running expenses, and remitting the balance to the said firm as agents for such vessels. The said firm of David Vance & Co., as agents, kept an account of the moneys so received and such disbursements as they made on account of said vessels, and accounted therefor to the plaintiff annually, or as required. At all said times said David Vance was president, and said Frank L. Vance was secretary, of the plaintiff company, and David Vance & Co. were the plaintiff's agents; and the secretary kept an account of the net earnings of the vessels and of the dividends made and paid from time to time. At all said times the plaintiff employed no clerks, bookkeepers, or office help, and did not have or occupy any office in the city of Milwaukee, and did not in any manner contribute to the payment of the rent of said office. In the year 1890 all the vessels owned by the plaintiff, and employed as aforesaid, were assessed for the purpose of taxation in said town of Lake, on the 17th day of December, 1890; and the plaintiff duly paid to the town treasurer of said town all the state, county, school, and town taxes levied pursuant to the assessment aforesaid in that year. In said year 1890 the assessor of the Third ward of the city of Milwaukee also listed said vessels for assessment for the purpose of taxation in said Third ward, and the said vessels were assessed in said ward, and the city tax hereinafter mentioned levied against the plaintiff thereon, notwithstanding the plaintiff duly protested against the same before the assessor and board of review. On the 31st day of March, 1891, the chief of police of the city of Milwaukee, having the warrant authorizing him to collect the delinquent city taxes, demanded the payment of said tax so levied against the plaintiff in respect to said vessels, and, the plaintiff refusing to pay the same, said officer levied upon property of the plaintiff to satisfy the same, whereupon the plaintiff, under coercion of said levy, to save its property, and under protest, paid the city taxes and charges in the sum of $798.37; and said sum has been covered into the treasury of said city. Judgment against the defendant is prayed for the sum of 798.24 and interest, besides costs. The defendant, by answer, either admits or alleges ignorance of the main facts set forth in the complaint, and avers on information and belief that at all the times mentioned in the complaint the plaintiff had kept and maintained an office in the Third ward of the city of Milwaukee, at which said office the plaintiff kept its officers and clerks, all of its general and principal books of account, and its stock book; and there its officers transacted all of its business, except as hereinbefore admitted, and, save the annual election of directors and officers and special meetings of stockholders, no other business was done or transacted by the plaintiff at its said office in the town of Lake; and at all times, save at the times of said elections and meetings, said office in the town of Lake remained closed, and that no books of account, or any stock book was ever kept in or taken to said office. It will be seen that in respect to these two offices of the company the answer does not much enlarge the averments of the complaint. The complaint states that no...