Ramme v. City of Madison

• Decision Date: 28 November 1967
• Citation: 37 Wis.2d 102,154 N.W.2d 296
• Parties: Howard RAMME, Appellant, v. The CITY OF MADISON, a municipal corporation et al., Respondents.
• Court: Wisconsin Supreme Court

Page 296

154 N.W.2d 296

37 Wis.2d 102

Howard RAMME, Appellant, v. The CITY OF MADISON, a municipal corporation et al., Respondents.

Supreme Court of Wisconsin.

Nov. 28, 1967.

Tilg & Koch, Milwaukee, for appellant.

Edwin C. Conrad, City Atty., Bruce K. Kaufmann, Asst. City Atty., Madison, for respondent City.

BEILFUSS, Justice.

The issues on this appeal are two:

1. Does appellant have standing to attack the constitutionality of the statute?

2. Does the statute afford the landowner a type of review not available to others liable for the tax thereby constituting a denial of equal protection of the laws?

The pertinent statutory provisions are as follows:

'66.058 Mobile home parks. (1) Definitions. * * *

'(a) 'Licensee' means any person licensed to operate and maintain a mobile home park under this section.

'(b) * * *

'(c) 'Park' means mobile home park.

'(d) * * *

'(e) 'Mobile home' is that which is, or was as originally constructed, designed to be transported by any motor vehicle upon a public highway and designed, equipped and used primarily for sleeping, eating and living quarters, or is intended to be so used; and includes any additions, attachments, annexes, foundations and appurtenances, except that a house trailer is not deemed a mobile home if the assessable value of such additions, attachments, annexes, foundations and appurtenances equals or exceeds 50 per cent of the assessable value of the house trailer.

'* * *

'(i) 'Mobile home park' means any plot or plots of ground upon which 2 or more units, occupied for dwelling or sleeping purposes are located, regardless of whether or not a charge is made for such accommodation.

'* * *

'(3) License and permit fees; court review. * * *

'(c) In addition to the license fee provided for in pars. (a) and (b), each licensee is (hereby) required to collect from each occupied mobile home occupaying space or lots in his mobile home park in the city, town or village a monthly parking permit fee equal to actual cost of services furnished by the school district, which cost shall be determined by the (county or city superintendent of schools whichever may have) jurisdiction and the cost of the municipal services which shall be determined by the governing body of the city, town or village and in both cases charged to the park every year payable monthly for maintenance, debt retirement, operation of schools and general administrative costs including, without limitation because of specific enumeration herein the following: fire protection, police protection, sewage disposal, garbage collection, and health services, in lien of personal property tax. The amount of such parking permit fee that may be levied against each mobile home park shall be determined after a public hearing as hereinafter provided. The monthly parking permit fee shall be paid by the licensee on or before the tenth of the month following the month for which such parking permit fee is due; provided, that the licensee of a mobile home park or trailer camp shall not be required to collect for any space occupied by a mobile home accompanied by an automobile, if said mobile home and automobile bear license plates issued by any other than this state, for an accumulating period not to exceed 60 days in any 12 months or if the occupants of the mobile home are nonresident tourists or vacationists. Exemption certificates in duplicate shall be accepted by the treasurer of the licensing authority from qualified nonresident tourists or vacationists in lieu of permit fees. When one or more persons occupying a mobile home are employed in this state, there shall be no exemption from the monthly parking permit fee.

'1. The licensee of a park shall be liable for the monthly parking permit fee for any mobile home occupying space therein as well as the owner and occupant thereof.

'(d) Each city, town or village shall make preliminary determination of the amount of the per mobile home parking permit fee to be levied against a mobile home park, and shall give notice of hearing on said proposed parking permit fee to be held in the hall of the city, town or village where any interested person shall have an opportunity to be heard.

'1. The clerk of said city, town or village shall post a notice of said hearing in at least 3 public places within the city, town or village, one posting of which shall be in a conspicuous place on each mobile hom park property. At least one week shall intervene between the date of posting of such notice and the time of the meeting. The city, town or village may at such meeting, or at an adjourned meeting, confirm or change the proposed parking permit fee and upon final determination of the amount of the parking permit fee shall post a notice on each mobile home park property stating the amount of the parking permit fee as finally determined.

'2. If the owner of any parcel of land affected by such determination feels himself aggrieved thereby, he may within 20 days after the date of posting such determination appeal to the circuit court of the county, notice thereof to be served upon the clerk of the city, village or town and by executing a bond to the city, town or village in the sum of $500 with 2 sureties or a bonding company to be approved by the clerk conditioned for the faithful prosecution of such appeal and the payment of all costs adjudged against him. The clerk, in case such an appeal is taken, shall make a brief statement of the proceedings had before the board, with its determination thereon and shall submit the same with all relevant papers to the clerk of the circuit court. Such appeal shall be tried and determined in the same manner as cases originally commenced in the court. An appeal brought under this section shall not be construed to prevent during the pendency of such appeal, the collection of any such monthly assessment currently or subsequently to become due. (Emphasis supplied.)

'3. * * *

'(c) If a mobile home is permitted by local ordinance to be located outside a licensed park, the monthly parking permit fee shall be paid by the owner of the mobile home, the occupant thereof or the owner of the land on which it stands, the same as and in the manner provided for licensees, provided that nothing contained in this subsection shall prohibit the regulation thereof by local ordinance.

'(f) Any mobile home park or trailer camp license fee and any mobile home parking permit fee not paid when due creates a lien in favor of the licensing authority in the delinquent amount upon the real estate parcel where such mobile home park, trailer camp or mobile home is situated or was situated at the time when the liability for such fee was incurred, effective as of the first day of the month or year for which such fee is levied. The licensing authority shall provide that all such license or permit fees not paid when due shall be extended upon the tax roll as a delinquent tax against the parcel where such park, camp or home is or was situated at the time when liability for such fee was incurred and all proceedings in relation to the collection, return and sale of property for delinquent real estate taxes shall apply to such delinquent license or permit fee.' (This subsection passed subsequent to commencement of the action.)

Does appellant have 'standing' to attack the constitutionality of the statute?

Respondent, City of Madison, argues that the appellant does not have 'standing' to challenge the constitutionality of the statute in question. Summarily, respondent's argument is that the fee is an excise tax levied against the landowner, not the trailer occupant; that the statute merely permits the tax to be passed on to the occupant and the city has no method of enforcing collection from the occupant; that, therefore, the trailer occupant is in exactly the same position as users of services or products subject to ordinary excise taxes in that these taxes are too remote, indirect, and incidental to allow them to challenge the validity of the tax. Since the city cannot collect the tax from the occupant, respondent argues, the occupant has no right which need be protected.

It is true the fee constitutes an 'excise tax on the parking of occupied trailers and not a tax upon them as property.' Barnes v. City of West Allis (1957), 275 Wis. 31, 37, 81 N.W.2d 75, 79. Further, subs. (c) and (d) of sec. 66.058(3), Stats., indicate that the fee is being levied against the mobile home park:

'(c) * * * The amount of such parking permit fee that may be levied against each mobile home park shall be determined after a public hearing as hereinafter provided. * * *'

'* * *

'(d) Each city, town or village shall make preliminary determination of the amount of the per mobile home parking permit fee to be levied against a mobile home park, * * *' (Emphasis supplied.)

The definition of 'Mobile home park' is in sec. 66.058(1)(i), Stats.:

"Mobile home park' means any plot or plots of ground upon which 2 or more units * * * are located, * * *' (Emphasis supplied.)

However, while the tax is stated to be 'levied' against the mobile home park, the trailer occupants are also an object of the tax. Sec. 66.058(3)(c), Stats., states that the licensee of the park is required ¹ to collect the fee from each occupied mobile home. Further, sub. (3)(c)(1) provides:

'The licensee of a park shall be liable for the monthly parking permit fee for any mobile home occupying space therein as well as the owner and occupant thereof.' (Emphasis supplied.)

From this section the 'licensee' is also an object of the tax. It is somewhat difficult to tell exactly who is the sole object of the tax imposed by the section. The section, however, is clearly an attempt to have trailer occupants and owners pay their fair share of the costs of municipal and school services furnished in exchange for a property tax exemption. Since the tax is to be 'collected' from the occupants of the mobile homes, and since they are 'liable' for the tax, it...