Oshkosh City Ry. Co. v. Winnebago Cnty.

• Decision Date: 05 February 1895
• Citation: 89 Wis. 435,61 N.W. 1107
• Parties: OSHKOSH CITY RY. CO. ET AL. v. WINNEBAGO COUNTY ET AL.
• Court: Wisconsin Supreme Court

89 Wis. 435

61 N.W. 1107

OSHKOSH CITY RY. CO. ET AL.

v.WINNEBAGO COUNTY ET AL.

Supreme Court of Wisconsin.

Feb. 5, 1895.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by the Oshkosh City Railway Company and others against the county of Winnebago and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

The action is to set aside a special assessment tax, to cancel a tax certificate issued thereon, and to restrain the execution of a tax deed on such certificate. The plaintiff is a railway company, having a right of way and roadbed and tracks along Ceape street, in the city of Oshkosh, near the center of the street. The board of aldermen paved and curbed Ceape street with cedar blocks. It charged a part of this improvement against the plaintiff's right of way and roadbed. That the assessment was unpaid, and the right of way and roadbed were afterwards sold, and a tax certificate issued to the county of Winnebago. There was a finding and judgment for the plaintiff, from which the county appeals.H. Fitzgibbon and H. I. Weed, for appellants.

Felkers, Stewart & Felker, for respondents.

NEWMAN, J.

No question is made of the power of the legislature to make the right of way of a railroad company subject to special assessment for the improvement, by paving, of a street in a city, to the extent, at least, to which it is benefited by the improvement. It is not so clear that it may authorize an assessment for an improvement which, from the nature of the property, cannot benefit it. Dill. Mun. Corp. 761-768. In this case the important question is, has the legislature made property situated as this property is subject to special assessment for paving the street in which it lies? The answer to this question depends altogether upon what may be the proper interpretation of the statutes which are thought to give the power to make such assessment to the city. The first consideration is whether these statutes are to have a liberal construction or a strict construction. It is believed to be elementary that every statute which is in derogation of the right of property, or that takes away the estate of the citizen, ought to be construed strictly. It should never be enlarged by an equitable construction. Suth. St. Const. § 363; 23 Am. & Eng. Enc. Law, 383 et seq., and cases cited in notes. The power to make local assessments is a part of the power of taxation. It is a sovereign power. It resides alone in the legislature. It can be delegated, but only by plain and unambiguouswords. Statutes delegating such authority will be construed strictly; nothing will be taken by presumption or intendment; and such statutory powers must be strictly pursued. Suth. St. Const. § 365, and cases cited in notes 4 and 5; Curtis v. Supervisors, 22 Wis. 167;Potts v. Cooley, 51 Wis. 353, 8 N. W. 153, and cases cited. The affirmative is on the city. It must produce express power in legislative enactment, and show that it has followed, strictly, every legal requirement. In re Second Ave. M. E. Church, 66 N. Y. 395. Any doubt or ambiguity arising out of the terms used by the legislature must be resolved against the power. Minturn v. Larue, 23 How. 435. Guided by these principles of interpretation, the statutes which are claimed to be authority for the levy of this assessment are to be tested. First is section 1836, Rev. St., which requires every corporation which owns or operates a railroad in the street of a city to restore the street to its former condition, so that its usefulness shall not be materially impaired, and “thereafter maintain the same in such condition against any effects in any manner produced by such railroad.” It would certainly require a very wild flight of imagination to discover in this statute any plain power to make a local assessment on the railroad corporation to improve the street. The statute, in terms, only requires the corporation to “maintain” the street, not to improve it. Then...