State ex rel. Milwaukee Cnty. v. City of Milwaukee

• Decision Date: 27 January 1933
• Citation: 210 Wis. 336,246 N.W. 447
• Parties: STATE EX REL. MILWAUKEE COUNTY ET AL. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

210 Wis. 336

246 N.W. 447

STATE EX REL. MILWAUKEE COUNTY ET AL.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Jan. 27, 1933.

Original action for declaratory relief by the State, on the relation of Milwaukee County and another, against the City of Milwaukee and others.--[By Editorial Staff.]

Decree in accordance with opinion.

Original action in this court brought by Milwaukee county and its treasurer for declaratory relief under section 269.56, Stats. respecting sales of lands for delinquent taxes levied in 1931.William A. Zabel, Dist. Atty., and Oliver L. O'Boyle, Corp. Counsel, both of Milwaukee, for petitioners.

James E. Finnegan, Atty. Gen., and Fred C. Seibold, Asst. Atty. Gen., as amici curiæ.

Max Raskin, City Atty., of Milwaukee, Cyrus Thieme, City Atty., of South Milwaukee, George H. Gabel, Village Atty., of Whitefish Bay, and Lawrence Conlan, both of Milwaukee (K. K. Kennan, of Milwaukee, of counsel), for respondents.

FOWLER, J.

Milwaukee county and its treasurer, Patrick McManus, naming as defendants the city of Milwaukee, city of South Milwaukee, village of Whitefish Bay, and T. V. Mueller as defendants, pursuant to leave granted by the court, bring this original action for declaratory relief respecting the sale of lands for delinquent taxes levied in the year 1931. The material facts alleged in the petition and undisputed or stipulated by the parties are summarized as follows:

Section 74.39, Stats., in terms provides that county treasurers should commence the sale of lands for delinquent taxes levied thereon in 1931 on June 14, 1932, and “continue the same from day to day.” The county treasurer had duly published the notice and advertisement of sale requisite to give jurisdiction to conduct the sale. On June 11, 1932, Governor Philip F. LaFollette, moved thereto by the unusual and great number of delinquent real estate taxes existing and the general economic condition prevailing throughout the state, issued an executive proclamation requesting that county treasurers commence the sale of land for delinquent taxes as prescribed by the statute, but to sell only one tract each day, and in making the daily sale to select a tract in which the county held a prior tax sale certificate; that, after making such single sale, adjournment of the sale to the following day should be made and entered of record; and that they refrain from making other than such single daily sales until after October 15, 1932.

The county treasurer complied with this request. On October 10, 1932, the Governor issued another proclamation requesting the county treasurers that the procedure suggested in his first proclamation be continued until February 1, 1933. This request was also complied with by the county treasurer with the single exception that on November 21, 1932, he offered for sale at public auction a parcel of land on which the county did not hold a tax sale certificate, which tract was bid in by and sold to the defendant T. V. Mueller, who on December 2, 1932, filed with the county board a petition for a refund of the money paid by him to the county on such sale under section 75.22 Stats., on the ground that the sale to him was illegal and void because there was no authority in law for conducting the sale on the day of the sale.

The petition further states that the county treasurer proposes to continue the tax sales according to said practice until February 1, 1933, and then to commence the practice of selling each day as many tracts as practicable and to continue such practice until all lands within the county have been sold upon which the 1931 tax remains delinquent, unless it be held by a court of competent jurisdiction that such sales cannot be legally conducted as contemplated. The defendant municipalities are selected as typical of all other municipalities within the county and made parties as interested in the matters submitted for determination because the several municipalities have been credited with the amount of the delinquent taxes returned by their local tax collectors, and are subject to having the amounts so returned charged back against them in three years except as the lands located therein sold for delinquent taxes may theretofore be redeemed from tax sale.

The petitioners ask that the court declare whether the county treasurer may legally proceed on February 1st with the tax sales as proposed. Requests for other specific declarations are made which will be stated so far as it is deemed necessary to comply with them.

The Governor in his first proclamation expressly based his request to the county treasurers on a decision of this court made in 1874, the opinion in which was written by Mr. Chief Justice Ryan, Wood v. Meyer, 36 Wis. 308. This was a case in ejectment. The plaintiff claimed under a tax deed. The defendant claimed the tax deed was void because the tax sale on which it was based was not made on a day on which the sale was authorized by law. The sale was made June 9, 1857. The statute then in force, R. S. 1849, ch. 15, § 86, fixed the sale of land for delinquent taxes as to commence on the second Tuesday in April. It was the same as the present statute in all material respects, except that the present statute, section 74.33, fixes the time of commencement as the second Tuesday in June. The court held that the sale was made upon a proper day, saying: “To hold the deed void on the ground alleged, we must find that the day of sale was, ex necessitate legis, a day on which the sale could not properly take place. This we cannot do. Under the statutes, the sale should have begun on the second Tuesday of April, and, if unfinished on that day, have been continued on the next succeeding days, till completed. But, so that the sale began on the first day named, and was continued from day to day on the succeeding days, the statute does not require that it should have been continued for any given time on each day. It is the habit, in some counties, to protract the sale by disposing of a single parcel or so on each day. This is not forbidden, and is a compliance with the statute. And we cannot say, judicially, that the sale in question may not have legally continued from the second Tuesday in April to the 9th day of June.”

The statute as thus construed authorized the continuance of the sale of lands for delinquent taxes during an extended period by making a single sale each day...