State ex rel. Donnelly v. Hobe

• Decision Date: 06 April 1900
• Citation: 82 N.W. 336,106 Wis. 411
• Parties: STATE EX REL. DONNELLY v. HOBE.
• Court: Wisconsin Supreme Court

106 Wis. 411

82 N.W. 336

STATE EX REL. DONNELLY

v.HOBE.

Supreme Court of Wisconsin.

April 6, 1900.

Syllabus by the Judge.

The city charter of the city of Superior provides generally for making up the annual city tax roll and extending thereon all general and special taxes against property mentioned and valued therein, upon a uniform percentage thereof, and also for extending on such roll special assessments for street improvements in a separate column against the property affected thereby for the benefit of the owners of the certificates representing such assessments, and for the collection of such burdens on property, and for the disposition of all taxes collected, not specially mentioning such assessments; also, generally, that delinquent returns shall be made to the county treasurer according to the laws regarding such returns by town treasurers. It also specially provides, in plain language, for the return of special assessments not seasonably paid to the city treasurer, and the enforcement thereof thereafter in the manner other delinquent taxes are enforced, “except that all moneys collected by the city treasurer and all moneys collected by the county treasurer or county clerk, on account of such taxes, shall be delivered or paid to the owner of the same, on demand, upon surrender of such certificate.” Held:

1. There is no room to work out, by judicial construction, a theory that the special assessment liens, or money collected in the enforcement thereof in any way, at any time, under any circumstances, becomes the property of the public represented by the city or county.

2. The plain legislative intent is that special assessment liens shall constitute private property till actually discharged by payment to the owners thereof, or to the city treasurer, county treasurer or county clerk for the use of such owners, and that such liens shall be enforced as to such private property through municipal machinery as the agent of such owners.

3. The rule applies that, where there is a general provision in a statute covering an entire subject, and a special provision plainly covering some particular part within the scope of such general provision, such special provision must prevail.

4. The plain intent being that the special assessment liens shall remain private property from first to last, by necessary implication the assessments extended upon the tax roll to discharge such liens must be returned delinquent if at all, separate from all other taxes, and thereafter be enforced separate from all other taxes, down to and including the issuance of certificates of sale on the tax sale.

5. If the money to discharge a special assessment lien comes into the hands of the county treasurer at any time before the sale of the property to enforce it, he thereby becomes a trustee thereof for the certificate holder. If the property be bid in at the tax sale for the county and a certificate of sale be taken accordingly, the treasurer, in his official capacity, will thereby become the trustee of such certificate for the owner of the special assessment lien; and if such certificate be sold by the county treasurer in the manner other tax certificates are sold, the money received therefor will constitute a trust fund in his hands for the benefit of the owner of the special assessment certificate.

6. If the county treasurer receive a tax-sale certificate or money on account of a special assessment returned to him delinquent in either of the methods above indicated, it is his duty to deliver the same to the owner of the special assessment certificate on demand therefor and the surrender of such certificate; and a failure so to do will entitle the owner of such certificate to the remedy by mandamus to enforce his rights.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Application by the state, on the relation of James C. Donnelly, for a writ of mandamus to John A. Hobe. Motion denied, and relator appeals. Reversed.

Such proceedings were duly taken by the proper officers of the city of Superior, pursuant to subchapter 13 of the charter of such city (chapter 124, Laws 1891), that certain street-improvement certificates were duly issued for special assessments charged to lots abutting on such street for the improvement thereof, and thereafter the relator became the owner of such certificates. The manner of enforcing collection of such special assessment liens for the benefit of the owners thereof, and the manner by which such owners obtain their money, are indicated in section 129 of the charter in the following words: “The comptroller's statement of the special assessments to be placed in the next tax roll shall include an amount sufficient to pay said certificates with interest thereon, at the legal rate, from the date of such certificates to the time when the city treasurer is required to make return of delinquent taxes; and thereafter the same proceedings shall be had as in case of other taxes, except that all moneys collected by the city treasurer and all moneys collected by the county treasurer or county clerk, on account of such taxes, shall be delivered or paid to the owner of the same, on demand, upon surrender of such certificate.” Pursuant to such provision of the charter, there was extended upon the tax roll of the city of Superior, against the proper descriptions of land, special assessments representing the relator's improvement certificates. The owners of the lots affected thereby failed to pay such assessments within the time allowed for the city treasurer to collect the same, and they were therefore returned delinquent to the county treasurer as other delinquent taxes of the city were returned, as the charter directs. After such assessments were collected by the county treasurer, the relator tendered his certificates to such treasurer and demanded payment thereof, which was refused. Thereupon the relator made his verified petition setting forth the aforesaid facts, and, on due notice to the county treasurer, moved the court for a writ of mandamus requiring him to comply with the relator's demand for the money collected on the special assessments as stated. The motion was denied and the relator appealed.

T. L. McIntosh, for appellant.

Isaac Ross and Michael S. Bright, for respondent.

MARSHALL, J. (after stating the facts).

The theory of appellant is that all money collected by the county treasurer on the special assessments was collected for his use by express provision of the city charter and is his private property; while the theory of respondent is that such assessments, when returned delinquent, became the property of the county the same as other delinquent taxes; that as soon as they were credited to the city of Superior by the county treasurer, pursuant to the general laws of the state regulating the manner of dealing with delinquent taxes, the city, in contemplation of law, had collected them and was liable to the relator for the amount of his certificates, and his recourse for payment thereof was solely to the fund thus accumulated in the hands of the city treasurer. The trial court adopted the latter theory. Which of the two theories is right is by no means free from difficulty. The question must be solved by a careful examination and comparison of the provisions of the charter of the city of Superior covering the subject.

Section 27 of the charter (chapter 124, Laws 1891) provides the basis for the action of the city clerk in placing special assessments for street improvements in the city tax roll, in the following language: “He [the city comptroller] shall make and deliver to the city clerk a list of all certificates for the payment of which special taxes are to be levied in each year, in time for the same to be inserted in the tax roll, in the form of a schedule of special taxes.” At this point it will be noted that special assessments are spoken of as taxes. In subchapter 12, which treats of assessment and collection of taxes, special assessments are uniformly spoken of as distinct from taxes. Section 102 in such subchapter provides that the city clerk shall place before the common council, each year, certain information for their consideration in determining the amount of taxes to be raised for such year, but such requirement does not include anything relating to special assessments. The scheme of the charter is that no action of the common council shall be required as to the placing of such assessments in the tax roll. They are thus placed from information furnished directly to the city clerk by the comptroller. Section 102 further provides that, upon receiving the information required to be placed before the common council in the manner therein indicated, it shall, by resolution, levy such sums of money as may be sufficient for the several purposes for which taxes are authorized. The next section provides that the clerk, upon a uniform percentage, shall extend upon the tax roll, in the manner therein indicated, the taxes levied by the common council, and shall also enter and extend upon the tax roll all special assessments and school taxes required to be entered thereon. Section 106 provides that, “all special assessments shall be carried out on the tax roll in a separate column or columns, opposite the lots or tracts upon which the same may be a lien, and the city treasurer shall have the same authority with reference thereto as if the amount of such lien was a general tax.” That indicates that the scheme of the charter is that special assessments shall constitute specific liens on specific property for the benefit of the owners of such liens; that such assessments are to be extended upon the tax roll for collection solelyfor the benefit of such owners; and that they are to be considered separate and distinct from “taxes,” strictly so called, meaning all burdens on property generally whether imposed for a general or a particular purpose.

The language of section 106, that...