Smith v. Sherry

• Decision Date: 10 January 1882
• Citation: 54 Wis. 114,11 N.W. 465
• Parties: SMITH v. SHERRY.
• Court: Wisconsin Supreme Court

54 Wis. 114

11 N.W. 465

SMITH

v.SHERRY.

Supreme Court of Wisconsin.

Filed January 10, 1882.

Appeal from circuit court, Shawano county.

Hastings & Greene, for appellant.

Finch & Barber and Moses Hooper, for respondent.

CASSODAY, J.

This case was here upon a former appeal. 50 Wis. 210; [S. C. 6 N. W. REP. 561.] It is now urged that it was found on the first trial, and that consequently this court then held that the lands in question were in the town of Seneca, and hence that such decision is res adjudicata. It is true, the court found, on the first trial, that the lands in question were a part of the territory specified in chapter 92, P. & L. Laws 1872, and that before the passage of that chapter they were a part of the territory of the town of Seneca, and that they were taxed both in Seneca and the village of Shawano, and hence that the deed taken thereon was void by reason of the payment of the taxes levied by the village, and because the lands were not in the village, nor taxable in Seneca. But it appears from a stipulation in the record, signed by the attorneys for the respective parties, and sanctioned by the trial judge, June 29, 1880, reciting the rulings of the court, that the defendant refrained from going into his whole defence at the request of the trial judge, and that if the judgment should be reversed the cause should be remanded for a new trial, and judgment should not be directed by the court on that appeal. The cause was reversed, and remanded for a new trial, in accordance with the stipulation, and for the reasons therein expressed. 50 Wis. 218; [S. C. 6 N. W. REP. 561.] Under these circumstances we must hold that the former decision of this court only went to the extent of holding the act of 1872 unconstitutional, and that under it the village of Shawano had no jurisdiction to levy a tax upon, nor collect a tax from, the lands in question, and hence all other questions were left open for litigation on the second trial. Thus the question litigated upon the first trial was not whether Seneca had jurisdiction to levy and collect the tax from the lands, but whether the village of Shawano had such jurisdiction. The question litigated upon the second trial was not whether the village of Shawano had jurisdiction to levy and collect the tax from the lands, but whether the town of Seneca had such jurisdiction.

Confessedly the lands were not, at the time the taxes in question were levied and assessed, in the town of Seneca, unless they were attached by an unpublished order of the county board, passed March 29, 1872, and entered in the minutes. Undoubtedly the county board had the power to change the boundaries of towns therein, in case proceedings were had in the manner prescribed in sections 28, 33, c. 13. Rev. St. 1858; sections 670, 671, Rev. St. The statute also prescribed the form in which all such orders and determinations should be carried into effect. Section 29, c. 13, Rev. St. 1858, now sub. 11, § 670, Rev. St. The order passed was not in the form prescribed, but substantially different, and attempted to attach one piece of territory to one town and another to another town, on mere motion. The record is this: “On motion of Carl Schmitz the board of supervisors do order and determine that town 28, range 14, be attached to the town of Herman for town purposes, and that town 28, range 13, be attached to the town of Seneca for town purposes.”

The statute also provided that whenever such order or determination is made, the same shall be published in some newspaper, and a copy of such publication furnished to each of the town clerks of the county, to be kept by them on file in their respective offices. Sections 30, 31, c. 13, Rev. St. 1858; section 674, Rev. St.

The statute also required that whenever the board organize a new town or alter the boundaries of any town in their county, they shall cause a plat and record to be made thereof, by their clerk, specifying the name and boundaries of such town, which plat and record shall be kept in the office of such clerk. Section 39, c. 13, Rev. St. 1858; section 673, Rev. St. By a compliance with these several statutory requirements the respective town officers, and the county officers, as well as the public, would be fully advised of the precise boundaries of every town, and all confusion, like that in the present case, would be obviated. Such boundaries are essential to the existence of a town. C. & N. W. Ry. Co. v. Town of Oconto, 50 Wis. 193, 194; [S. C. 6 N. W. REP. 607.] The legislative intent was thereby clearly indicated, and the importance of a compliance with these statutory requirements cannot be overestimated. Every citizen is directly interested in knowing the town he lives in. It is liable to enter into the description of every piece of real estate conveyed. Every voter decides for himself, and at his peril, as to the boundary lines of his town. Can it be claimed that the statute as to the form and publication of the order and determination in question are merely directory, and thus open the door for interminable mistakes, not only upon the part of citizens, but town officers? If the attempt to detach territory from one town and add it to another, or to attach mere territory to an organized town, is so defective as not to protect the voter or the tax-payer, can it be held that it is nevertheless sufficient to protect and vest title in the tax-title claimant? It seems to us that the statutes relating to the form and publication of the order and determination, are mandatory, and must be substantially complied with in order to effect a change of boundary. This was in effect so held in State v. Pierce, 35 Wis. 93.

In Clark v. Janesville it was held by this court that the charter of the city did not go into effect until published, notwithstanding a question under the charter within its terms was, prior to such publication, submitted to the voters and voted upon. 13 Wis. 414;10 Wis. 135. In Pettit v. May, 34 Wis. 674, it was held, in effect, that where a charter requires an ordinance to be published, it is of no effect until publication, and that the defect is not waived by failure to specifically object. See, also, Nevada v. Rogers, 10 Nev. 250;Antonia v. Gould, 34 Texas, 49. In view of these adjudications, as well as upon principle, we are clearly of the opinion that the attempt to attach the township in question to the town of Seneca by the unpublished order and determination referred to, was ineffectual to accomplish the purpose. It is claimed, however, that conceding this to be true, yet there was not such want of jurisdiction in the tax proceedings prior to the tax deed as to prevent the statute of limitations running in favor of the plaintiff, and a very ingenious and forcible argument is made in support of such claim. The gist of the contention is that the order of the board gave color of authority to the town of Seneca to assess and levy the tax in question, and that when the deed was issued it became prima facie evidence of the regularity of all proceedings from the valuation by the assessors, inclusive, up to the execution of the deed, and hence the deed was sufficient to set the statute of limitations running. In support of the proposition, counsel rely principally upon Knox v. Cleveland, 13 Wis. 245, and Oconto v. Jerrard, 46 Wis. 317.

In Knox v. Cleveland the attempt was made to show that part of the taxable lands in the district had been “deliberately and intentionally omitted, but the time prescrihed by the statute had already run. In giving the opinion of the court, Dixon, C. J., said: “We are of opinion that the statute put these matters at rest, and that the appellant cannot go into them. It made the deed, in the first instance, prima facie evidence of the regularity of all proceedings from the valuation by the assessor, inclusive, up to the execution of the deed. The levy of taxes followed the valuation. The deed was, therefore, presumptive evidence that the taxes were properly levied. It was like evidence that all taxable property within the district was duly assessed. * * * The statute has closed the door to their investigation.” This view is reiterated and pressed with great force, by the late chief justice, in Oconto v. Jerrard, but there is an important qualification mentioned in each of those cases which seems to be peculiarly applicable here. Judge Dixon, in Knox v. Cleveland, said: “The general authority of the taxing officers, and the liability of the land to taxation, being conceded, all other questions are at an end. If either of them were wanting, another question would be presented. It might then be urged that there was a defect of jurisdiction; that the sale was altogether unauthorized and void, and passed no title or color of title, and furnished nothing upon which the statutory bar could operate.” Page 285.

This language is quoted with approval by the late chief justice, and he adds that it “suggests the only condition of things to which the statute will not apply--want of authority ab initio of the taxing officers to put the taxing power in motion. * * * Property exempt from taxation by law is excepted from all authority to levy taxes, and is as much without the jurisdiction of taxing officers as if it were without their taxing district or without the state. A tax cannot attach to it, because it is not a subject of taxation. The power of taxation is an attribute of sovereignty, and can be exercised only under express authority of the sovereign. Every tax in this state must be expressly authorized by statute. The state acts through its municipalities, and the municipalities act through their officers; * * * and when municipalities or their taxing officers assume to levy a tax or to institute a tax proceeding not authorized by statute, they are outside their functions, and are not acting virtute officii. They are not in the exercise of the sovereign power of taxation, and are as powerless...