Trs. of Clinton Lodge No. 152, K. P. of Wis. v. Rock Cnty.

• Decision Date: 09 March 1937
• Citation: 272 N.W. 5,224 Wis. 168
• Parties: TRUSTEES OF CLINTON LODGE NO. 152, K. P. OF WISCONSIN, v. ROCK COUNTY et al.
• Court: Wisconsin Supreme Court

224 Wis. 168

272 N.W. 5

TRUSTEES OF CLINTON LODGE NO. 152, K. P. OF WISCONSIN,

v.ROCK COUNTY et al.

Supreme Court of Wisconsin.

March 9, 1937.

Appeal from a judgment of the Circuit Court for Rock County; George Grimm, Judge.

Affirmed.

This action was begun on July 22, 1935, by the trustees of Clinton Lodge No. 152, Knights of Pythias of Wisconsin, of Clinton, a fraternal corporation, against Rock County, Village of Clinton, and Helen Hastings, treasurer of the Village of Clinton, defendants, to set aside and annul certain tax certificates described in the complaint on the ground that the property therein described was exempt from taxation. There was a trial. From a judgment in favor of the plaintiff, entered on May 25, 1936, the defendants appeal.

Facts will be stated in the opinion.

FAIRCHILD, J., dissenting.McGowan, Geffs & Persons and John H. Matheson, Dist. Atty., all of Janesville, for appellants.

Roy C. Cromer and George Garrigan, both of Beloit, for respondent.

ROSENBERRY, Chief Justice.

[1] The defendants contend that the plaintiff cannot maintain this action because it does not appear that within twenty days after its commencement the plaintiff paid, or caused to be paid, to the taxing officers the amount of taxes, interest, and charges as a condition of maintaining the action.

The plaintiff seeks to maintain the action upon the sole ground that the property in question was exempt from taxation. It has been held that under such circumstances the taxing officers were without jurisdiction, and compliance with the section was not required. Chicago & N. W. R. Co. v. Arnold (1902) 114 Wis. 434, 90 N.W. 434;Wisconsin Real Estate Co. v. Milwaukee (1912) 151 Wis. 198, 138 N. W. 642.

[2] The defendants next contend that, more than a year having elapsed since the date of the sale, an action may not be maintained because section 75.61, Wisconsin Stats., requires every such action to be brought within one year from the date of the tax sale. However, that action applies only to cases to set aside tax certificates or tax deeds for error or defect going to the validity of the assessment and affecting the groundwork of such tax.

In Wisconsin Real Estate Co. v. Milwaukee, supra, a distinction between an action to set aside a tax sale on the ground that the lands were exempt from taxation and an action to set aside a tax sale where there has been a failure to comply with the statutory provisions relating to levy was drawn and it was there held that in case of exemption the statute did not and could not apply. It is only in cases where the property is subject to taxation and the state is entitled to levy a tax thereon that the state will not permit litigants to come into court and contest the tax without first having paid it. If, however, the property is exempt and the state has no right or power to impose a tax in any event the limitation contained in section 75.61 does not apply and payment of the tax in compliance with section 75.62 is not required.

[3] Was the property assessed in this case exempt? Exemption is claimed under the provisions of section 70.11(4), Stats., which so far as applicable is as follows: “The property in this section described is exempt from taxation, to wit: *** (4) Personal property owned by *** fraternal societies, orders or associations operating under the lodge system *** which is used exclusively for the purposes of such association, and the real property necessary for the location and convenience of the buildings of such institution or association and embracing the same, not exceeding ten acres; provided, such real or personal property is not leased or otherwise used for pecuniary profit. *** The occasional leasing of such building to similar organizations for literary, educational or benevolent purposes where all income derived therefrom is used for upkeep or maintenance,or the leasing of such parsonages, shall not render them liable to taxation.”

Under this statute it was held that any use of the property other than for benevolent or charitable purposes or any substantial part of it made the property subject to taxation. Elks, Green Bay Lodge v. Green Bay (1904) 122 Wis. 452, 453, 100 N.W. 837, 106 Am.St.Rep. 984;Methodist Episcopal Church Baraca Club v. Madison (1918) 167 Wis. 207, 167 N.W. 258, L.R.A.1918D, 1124. See, also, Cardinal Publishing Co. v. Madison (1931) 205 Wis. 344, 237 N.W. 265.

The section was amended, however, in 1931 by chapter 302 of the Laws of 1931, which created subsection (4a). That subsection provides: “Where personal property and real property necessary for the location and convenience of buildings and embracing the same, not exceeding ten acres, owned by fraternal societies, orders or associations, operating under the lodge system, *** is used in part for exempt purposes and in part for pecuniary profit, then the same shall be assessed for taxation at such percentage of the full...