State ex rel. City Const. Co. v. Kotecki

• Decision Date: 27 February 1914
• Citation: 146 N.W. 528,156 Wis. 278
• Parties: STATE EX REL. CITY CONST. CO. v. KOTECKI, CITY COMPTROLLER.
• Court: Wisconsin Supreme Court

156 Wis. 278

146 N.W. 528

STATE EX REL. CITY CONST. CO.

v.KOTECKI, CITY COMPTROLLER.

Supreme Court of Wisconsin.

Feb. 27, 1914.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Mandamus by the State, on the relation of the City Construction Company, against Louis M. Kotecki as Comptroller of the City of Milwaukee. From an order quashing the alternative writ, the relator appeals. Affirmed.

The alternative writ was issued to compel the comptroller of the city of Milwaukee to proceed under chapter 71, Laws of 1901, now section 926, subdivs. 135-138, Wis. Stats., by accepting, filing, and including in his statement of special assessments to be placed in the next tax roll of the city of Milwaukee a special assessment certificate issued to the relator, a contractor, after the special assessment evidenced by such certificate had been placed upon the assessment roll levied against the property benefited and carried into the tax roll for collection under the provisions of the city charter.

Marshall, Barnes, and Vinje, JJ., dissenting.

Benjamin Poss, of Milwaukee, for appellant.

Daniel W. Hoan, City Atty., and Clifton Williams, First Asst. City. Atty., both of Milwaukee, Wis., for respondent.

TIMLIN J. (after stating the facts as above).

[1][2] The question presented is whether the statutes above referred to apply to the city of Milwaukee. In order to correctly apply these statutes we must keep in mind the situation in this state with reference to city charters at the time of their enactment. Prior to March 26, 1901, there were in this state cities having authority to issue to contractors or others in payment of some contracts special assessment certificates. City charters with reference to delinquent city taxes could be divided into two classes: First. Those containing a provision authorizing a tax sale of the lands affected by such taxes by the city treasurer under authority of the city, but where state and county taxes delinquent were returned to the county treasurer and the lands thereby affected sold by the latter treasurer under the general statutes of the state. This class included the charter of Milwaukee, the charter of La Crosse (chapter 162, Laws 1887), the charter of Janesville (chapter 221, Laws 1882), and the old charter of Green Bay prior to 1882, and perhaps other cities. Second. Those requiring all city taxes, as well as all other taxes delinquent and unpaid, to be returned to the county treasurer by the city treasurer, and the lands affected thereby sold by the county treasurer under the general statutes of this state. This included the general city charter (chapter 326, Laws 1889), now appearing as chapter 40a, Wis. Stats., and the city charter of Sheboygan (chapter 254, P. & L. Laws 1868), the city charter of Oshkosh (chapter 183, vol. 2, Laws 1883), the charter of Manitowoc (chapter 275, P. & L. Laws 1870, as amended), the charter of the city of Racine (chapter 313, vol. 2, Laws 1876, as amended), the charter of Madison (chapter 36, Laws 1882), and perhaps others.

There is but one tax sale expressly authorized by each treasurer in either case. In the first class of cities the sale by the city treasurer was made for all delinquent city taxes and special assessments together, and in the second class the sale was made by the county treasurer for all taxes and special assessments together. Smith v. Vandyke, 17 Wis. 208;Smith v. Ludington, 17 Wis. 334;Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141;Sheboygan v. Sheboygan, 54 Wis. 415, 11 N. W. 598;Hoyt v. Fass, 64 Wis. 273, 25 N. W. 45;Heller v. Milwaukee, 96 Wis. 134, 70 N. W. 1111;Wis. Real Est. Co. v. Milwaukee, 151 Wis. 198, 138 N. W. 642;Williams v. Eau Claire, 134 Wis. 543, 115 N. W. 140.

In the cities falling under the second class above specified this in time led to confusion in the accounts between such cities and the county, because the city was entitled to a credit against the county for all taxes returned as unpaid and delinquent, which taxes thereafter belonged to the county. If the county thereafter collected thereon more than the sum due from the city to the county for unpaid county tax, the city was entitled to a credit for the excess. Section 1114, Stats. 1898. Special assessment certificates issued to contractors and unpaid were held to be unpaid taxes within the meaning of this section. Sheboygan v. Sheboygan, supra. Where the county did not collect the delinquent taxes, but bid in at the tax sale and there was no redemption, it thus became and remained the owner of and indebted to the city for a demand belonging to the contractor. See opinion of Circuit Judge Gilson in brief of counsel in Sheboygan v. Sheboygan, supra; Jenks v. Racine, 50 Wis. 318, 6 N. W. 818. Chapter 71, Laws 1901, was entitled: “An act to provide against charging to counties the special assessment certificates issued by cities to contractors in payment upon contracts, and for the enforcement thereof.” The whole purview of this act, omitting for the instant particular phrases found therein, is in harmony with this title. No such difficulty of accounting was possible with reference to cities falling under the classification first mentioned because the certificates, being considered city taxes, never reached the county treasurer at all. This alone is a pretty conclusive indication that such cities were not intended to be affected by the act in question.

The first section requires interest to be computed on the assessment certificate at the legal rate from its date to the time when the city treasurer is required to make return of delinquent taxes. This points to the return mentioned in the general statutes made to the county treasurer, for the city treasurer makes no return of delinquent taxes to himself. The second section expressly requires a return to the county treasurer of the special assessment certificate as delinquent taxes by the city treasurer, and contains no limitation, but the language is general and applies to all special assessment certificates covered by the act. It also requires that the county treasurer shall proceed as in other cases of delinquent taxes with reference to all special assessments covered by the act or included in its provisions. It also provides that the delinquent tax shall not be charged to the county, nor credited to the city. The third section provides for redemption of all tax certificates issued upon a sale for delinquent special assessment certificates included in the act. This redemption is to be made in the same manner that redemption may be made from general taxes, not city taxes. This third section also provides for the issue of a tax deed by the county clerk upon all tax certificates of the kind last mentioned included in the act. The fourth section makes other provisions relative to such tax certificates, and gives the owner and holder of the assessment certificate of sale issued thereon any and all other remedies given by law for the collection of the same, or in the collection of other tax certificates of sale in this state, except that he shall have no right to recover from the city issuing the assessment certificate or the county issuing the tax certificate of sale. These provisions are inappropriate to cities of the class first mentioned, but appropriate to cities of the second class mentioned.

“It is a well-settled rule for construing statutes that particular words ought not to be permitted to control the evident meaning of the context.” Williams v. McDonal, 3 Pin. 331.

“The court will inspect the whole act, and, if the true intention of the Legislature can be reached, the false description will be rejected as surplusage, or words substituted, in the place of those wrongfully used, which will give effect to the law.” Palms v. Shawano et al., 61 Wis. 211, 21 N. W. 77.

“We are more especially bound to consider what is the object of the whole act, and what is the light thrown upon that object by every part of the statute. We may look chiefly at the preamble, as stating ‘the ground and cause of making the statute,’ and as being ‘a key to open the minds of the makers of the act and the mischief which they intended to redress.’ ” McCaul v. Thayer, 70 Wis. 138, 148, 35 N. W. 353,...