Rinder v. City of Madison

• Citation: 163 Wis. 525,158 N.W. 302
• Parties: RINDER, COUNTY TREASURER, v. CITY OF MADISON ET AL.
• Decision Date: 13 June 1916
• Court: United States State Supreme Court of Wisconsin

163 Wis. 525

158 N.W. 302

RINDER, COUNTY TREASURER,

v.CITY OF MADISON ET AL.

Supreme Court of Wisconsin.

June 13, 1916.

Appeal from Circuit Court, Dane County; A. H. Reid, Judge.

Action by Herbert G. Rinder, County Treasurer of Dane County, against the City of Madison, Carl Moe, as City Treasurer, and others. Judgment for plaintiff, and defendants appeal. Modified and affirmed.

This is an appeal from a judgment of the circuit court for Dane county. The action is brought by the plaintiff, as county treasurer of Dane county, against the defendants upon the bond of the city treasurer furnished to the county treasurer and conditioned for the payment of the county and state taxes.

The plaintiff is and was county treasurer, and the defendant Carl Moe is and was city treasurer, and the other individual defendants are the bondsmen of the city treasurer. The city of Madison is a municipal corporation having no prospective state highways within its corporate limits. At the annual meeting of the county board for Dane county in November, 1915, a tax of eight-tenths of a mill was levied upon all the taxable property in Dane county for the county highway fund, which tax amounted to $129,658.15. Of this amount there was apportioned and certified by the county clerk to the city of Madison the sum of $47,110.58, which was required to be raised by the city of Madison for county highway improvements. This sum was levied by the city of Madison, and the city treasurer collected and now has such sum in his possession. He was directed by the common council not to pay it to the county treasurer. Of the $129,658.15 levied by the county board for Dane county as aforesaid, the sum of $16,000 was levied for county bridge aid, petitions for which were properly filed, and the proper proceedings taken under section 1319, Stats. The sum of $47,110.58 apportioned to the city of Madison for the county highway improvement includes $5,813.51 of this tax for building bridges. After deducting this sum there remains a balance of $41,297.07 as the proper amount apportionable to the city of Madison under the state aid highway law.

The circuit court held that the county board had no right to levy the tax of $5,813.51 on the city of Madison for the purpose of building county bridges, and that the tax of $41,297.07 was properly levied as the city's portion of the county highway fund pursuant to the state aid highway law, and judgment was entered in favor of the plaintiff in the sum of $41,297.07, with interest at the rate of 10 per cent. per annum and a penalty of 5 per cent. for withholding payment of this tax after it was demanded. From such judgment, this appeal is taken.William Ryan, City Atty., and Bagley & Reed, all of Madison (Frank W. Lucas, of Madison, of counsel), for appellants.

W. C. Owen, Atty, Gen., Winfield W. Gilman, Asst. Atty. Gen., and Harry Sauthoff, Dist. Atty., of Madison, for respondent.

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

The city of Madison and its treasurer claim in justification of the refusal to pay the county the sum of $41,297.07 collected by the city and now in the treasurer's possession as a tax on the taxable property of the city that parts of the provisions of sections 1317m1 to 1317m15, Stats., under which the tax was levied by the county, are in conflict with the state Constitution, and therefore void. This tax was collected pursuant to a levy of the Dane county board to raise a county highway fund under the provisions of this law. It appears that this amount had been apportioned and certified by the county clerk as the city's share of such county tax. The city of Madison does not question that the exertion by the county of its taxing power was for the public purpose of providing and maintaining a system of county highways for public travel. It is, however, contended by the defendants that the parts of the statutes creating the county highway system, which provide that the system “shall begin at the corporate limits of the county seat and of the various market towns and railroad stations of the county and include the main traveled highways leading into each town in the county,” and that the county board shall add to this system “such streets in incorporated villages as directly connect the ends of roads then on said system, and such streets when so added * * * shall become a part” of this county highway system (section 1317m3, subd. 1 [a] and [b]), constitute an arbitrary classification of highways, resulting in unreasonable discrimination against the rights of the people in such cities, and depriving them of the equal protection of the law. The argument is made that the exclusion of city streets from the county system of highways deprives city residents, as an integral part of the county taxing district, from receivingthe benefits of the taxes imposed on them for highway improvements, and confers the benefit of such tax on the residents of towns and villages, and thus subjects them to a system of taxation that violates the rule of uniformity guaranteed by the Constitution, and deprives them of the equal protection of the law in bearing the burdens of taxation.

[1] If the selection of highways for the county system is a proper classification within the constitutional powers of the Legislature, then no constitutional infirmity is apparent in the legislation here assailed. The scope of the legislative power to deal with the subject of establishing taxing districts for the maintenance and improvement of the highways in the state is exemplified by the legislation embodied in the statutes of this state, and by the various cases where such legislation has been assailed as an improper exercise of this power shown by the recorded decisions of this court on the subject. Discussion of the questions here involved could add nothing to the full elaboration of them in former decisions of this court, and we therefore deem it sufficient to reiterate in part what has been said by this court on the subject. In Land, Log & Lumber Co. v. Brown, 73 Wis. 303, 40 N. W. 486, 3 L. R. A. 472, Mr. Justice Taylor, speaking for the court, declares:

“If a rule for taxation should be adopted which limits the right of taxation for public improvements to such property only as it can be shown is directly benefited by such improvement, it would result in endless confusion and litigation, and render void very many acts for the government of towns and counties. * * * It is for the Legislature to fix the limits of the taxing district, and not for the courts. * * * This court has affirmed the validity of the law concerning the building of bridges, which compels the whole county to contribute to the building of a bridge in one town, and that without regard to the question whether the bridge to be built would be any direct benefit to any other town in the county.”

The court also states that no rule of public policy forbids taxation of property for any public purpose which may not directly benefit such property, “and that the justice or injustice of the limits of the taxing district, when fixed by the Legislature or some other authority authorized by law to fix the same, cannot be questioned by the courts.” In Jensen v. Board of Supervisors, 47 Wis. 298, 2 N. W. 320, it was declared:

“The Legislature must in all cases determine by law what locality or division of the state shall be burdened with the expenses of opening and repairing highways. * * * There can be no doubt as to the power of the Legislature to compel the several counties of the state, by general law, to open and work the state roads laid out and located within their respective boundaries; and, unless there be some clause of the Constitution which expressly prohibits it, the power to do so as to...