Somo Lumber Co. v. Lincoln Cnty.

• Decision Date: 30 April 1901
• Citation: 110 Wis. 286,85 N.W. 1023
• Parties: SOMO LUMBER CO. v. LINCOLN COUNTY ET AL.
• Court: Wisconsin Supreme Court

110 Wis. 286

85 N.W. 1023

SOMO LUMBER CO.

v.LINCOLN COUNTY ET AL.

Supreme Court of Wisconsin.

April 30, 1901.

Appeal from circuit court, Lincoln county; W. C. Silverthorn, Judge.

Injunction of the Somo Lumber Company against Lincoln county and others to restrain the collection of certain taxes. From a decree in favor of plaintiff, defendants appeal. Affirmed.F. J. Smith (Curtis, Reid, Smith & Curtis, of counsel), for appellants.

John Barnes, for respondent.

CASSODAY, C. J.

This action was commenced April 27, 1898, to set aside the taxes of 1897 on the plaintiff's real estate, described, situated in the city of Tomahawk, and to restrain the collection thereof. Issue being joined and trial had, the court found as matters of fact, in effect, that the city of Tomahawk was organized under chapter 58, Laws 1891; that in February, 1896, the common council of the city adopted an ordinance purporting to ordain that chapter 326, Laws 1889, as amended by chapter 312, Laws 1893, be adopted in lieu of its special charter; that in February, 1896, the governor issued to the city letters patent under the great seal of the state, reciting the facts, defining the boundaries of the city, and purporting to constitute the same a municipal corporation governed by the provisions of the general charter law then in force and now incorporated in chapter 40a, Rev. St. 1898; that from and after such adoption the people and officers of the city acted pursuant to the general charter law; that the plaintiff's property, described, was subject to assessment, and was assessed in the city for that year; that the assessor and board of review exercised reasonable diligence, and did not intentionally discriminate against any taxpayer, nor intentionally omit from assessment any known taxable property in making up the assessment roll for that year; that the total assessed valuation of the property in the city was $373,674; that there was levied thereon a tax of 5 per cent., aggregating $18,683.70, of which amount $1,980 was levied to pay waterworks bonds of the city, and interest on the same, $2,328 to pay railroad bonds of the city, and interest thereon, $7,473.48 for the support of city schools, $5.460.43 for state and county taxes, and $1,441.79 for general city purposes; that the two items to pay bonds and interest, aggregating $4,308, were levied to pay legal indebtedness of the city created and existing prior to April 1, 1896; that the plaintiff had not paid or tendered the taxes, or any part thereof, levied against its property. And as conclusions of law the court found, in effect, that the assessment was valid; that in February, 1896, the city had power to adopt, and did legally adopt, as its charter the general city charter of this state included in chapter 326, Laws 1889, and subsequent amendments; that the limitation on the power of taxation contained in the general charter law now embodied in subsection 142a of section 925, Rev. St. 1898, is a valid limitation, and the same was in effect in the city of Tomahawk in the year 1897, and prevented the levy in the city for all purposes of any greater tax than 3 per cent. of the assessed valuation of the city; that all taxes carried out against the plaintiff's property in excess of 3 per cent. of the assessed valuation thereof was levied without authority in law; that the balance of the taxes against the plaintiff's property are valid, and legally chargeable to the same; that the amount legally chargeable was $390, together with the usual 5 per cent. collector's fees, and interest on the total amount at 6 per cent. per annum from January 1, 1898; that the plaintiff was entitled to judgment setting aside the taxes of 1897 upon its property, and restraining the collection thereof, etc., on condition that it pay into the court, for the use and benefit of the defendant Lincoln county, within 30 days from the filing of the findings, the sum of $390, with 5 per cent. collector's fees, and interest on the combined sum at the rate of 6 per cent. per annum from January 1, 1898; that on failure of the plaintiff to pay such sum as required the defendants will be entitled to judgment dismissing the complaint. From the judgment entered thereon accordingly the defendants bring this appeal.

1. The important question in this case is whether the trial court was right in holding that the city of Tomahawk had power to adopt the general charter law in February, 1896. The original general charter law is chapter 326, Laws 1889. By the first section of that act the cities of this state then existing or that might thereafter be created under the provisions of that act were divided into three classes, as therein stated. The second and third sections of the act read as follows: “No city now incorporated under the laws of this state shall be affected by the provisions of this act, unless such city shall adopt the same for its government in the manner hereinafter provided.” “When the common council of any city now incorporated, by a three-fourths vote of all the members thereof shall have adopted this act for its government, and a patent shall have been issued as hereinafter provided, such city shall cease to exist as a corporation under the charter and laws creating such corporation or adopted for its government, and shall constitute a municipal corporation under this act, and shall be governed by its provisions.” Then, after prescribing the manner of such adoption, it is provided therein that: “Whenever this act shall be adopted by a city now incorporated, the officers of such city shall continue in office * * * until their successors are elected and qualified.” Section 6. Then, after prescribing the manner of incorporation of cities under such general charter act, it provides for the issuance of a patent therefor, and, among other things, declares that: “Any patent issued and recorded in the manner herein provided, the record thereof or a certified copy of such record, shall be conclusive evidence in all courts and places of the due incorporation of the city mentioned in said patent, and of all the facts therein recited.” Section 13. That act went into effect April 12, 1889. There is no question but what the provisions of the act mentioned gave ample authority to any city then existing under a special charter to adopt such general charter, but it obviously gave no such authority to any city which might thereafter be incorporated and organized under a special charter. This, no doubt, was owing to the fact that the same legislature which passed such general charter law also proposed the constitutional amendment, prohibiting the legislature “from enacting any special or private laws * * * for incorporating any city, * * * or to amend the charter thereof.” Subdivision 9, § 31, art. 4, Const. Wis., amended Laws 1889, p. 764. With such pending amendment and the existence of such general charter law, it was obviously supposed that no subsequent legislature would incorporate any city by a...