Union Cemetery v. City of Milwaukee

• Decision Date: 07 March 1961
• Parties: UNION CEMETERY, a cemetery association, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 180

108 N.W.2d 180

13 Wis.2d 64

UNION CEMETERY, a cemetery association, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent.

Supreme Court of Wisconsin.

March 7, 1961.

In 1953, the City of Milwaukee assessed the plaintiff Union Cemetery for street improvements on Hopkins street. This action was commenced to recover the assessment paid under protest. Certain facts and issues were stipulated and the plaintiff moved for summary judgment, which was denied. The plaintiff based its claim for recovery on its special charter which was granted by Chapter 278 of the Private and Local Laws of 1865 and Chapter 177 of the Private and Local Laws of 1868. The charter incorporated by reference sections 14 and 15, c. 67 of the Revised Statutes of 1858, section 15 of which provided for the exemption of cemetery associations from all public taxes and assessments. The Revised Statutes of 1858 were repealed by Chapter 205 of the Revised Statutes of 1878, which did not exempt cemeteries from assessments and no statute thereafter enacted has so exempted cemeteries.

Von Briesen & Redmond, E. Thomas Schilling, Milwaukee, for appellant.

John J. Fleming, City Atty., Ewald L. Moerke, Jr., John F. Kitzke, Asst. City Attys., Milwaukee, for respondent.

HALLOWS, Justice.

The exemption of the plaintiff from special assessments was valid when the legislature chartered the plaintiff by special legislation in 1865 and 1868. Exemptions from special assessments are within the discretion of the legislature and need not follow the rule of uniformity applied to exemptions from general taxation. Lamasco Realty Co. v. City of Milwaukee, 1943, 242 Wis. 357, 8 N.W.2d 372, 865; Lawrence University v. Outagamie County, 1912, 150 Wis. 244, 136 N.W. 619, 2 A.L.R. 465. By the Wisconsin Constitution, Article VIII, Sec. 1, taxation must be uniform but taxes and assessments are not always synonymous. Yates v. City of Milwaukee, 1896, 92 Wis. 352, 66 N.W. 248; Dalrymple v. City of Milwaukee, 1881, 53 Wis. 178, 10 N.W. 141. Special assessments are not subject to the general rule of uniformity and the constitutional rule does not apply to them. Bond v. City of Kenosha, 1863, 17 Wis. 284; and City of Milwaukee v. Taylor, 1938, 229 Wis. 328, 282 N.W. 448.

The exemption from special assessments was granted to the plaintiff by the process of legislation by reference. Although this device has been the subject of criticism, referential legislation is a common practice. The effect of incorporating the provisions of another statute by words of reference rather than by verbatim repetition of the provisions of the statute previously enacted is to make the earlier or adopted statute as much a part of the later or incorporating statute as though the provisions had been set forth verbatim and at length. 168 A.L.R. 627; 50 Am.Jur., Stats., p. 58, sec. 38. In construing referential legislation, it is, therefore, necessary to look beyond the four corners of the incorporating statute and include within its periphery the incorporated or adopted provisions of the other statute.

The question in this case is what is the effect on the incorporating statute of a subsequent repeal of the incorporated statute. If there is a repeal of the incorporated statute, does such repeal flow back through the reference and excise from the incorporating statute the repealed statute so as to leave the incorporating statute bereft of its reference? In the absence of legislative intent which does not appear in the special charter, resort must be had to rules of construction. In formulating these rules, this court has followed the common-law rules developed by the American cases and has distinguished specific and general references. When the adopting statute incorporates an earlier statute or a limited and a particular provision thereof by specific reference, such incorporation takes the statute as it existed at the time of incorporation and does not prospectively include subsequent modifications or a repeal of the incorporated statute or portions thereof. Mueller v. City of Milwaukee, 1949, 254 Wis. 625, 37 N.W.2d 464; Milwaukee County v. Milwaukee Western Fuel Co., 1931, 204 Wis. 107, 235 N.W. 545; Flanders v. Town of Merrimack, 1880, 48 Wis. 567, 4 N.W. 741; Sika v. Chicago & North Western Railway, 1867, 21 Wis. 370. However, when a statute incorporates the general law on a particular subject, the reference is construed to mean that such statute as it exists at the time of incorporation and at any given time thereafter is incorporated. Thus a general reference adopts prospectively the future alterations and even the repeal of the incorporated law. George Williams College v. Village of Williams Bay, 1943, 242 Wis. 311, 7 N.W.2d 891; Hay v. City of Baraboo, 1906, 127 Wis. 1, 105 N.W. 654, 3 L.R.A.,N.S., 84. These rules of construction are discussed in 2 Sutherland, Statutory Construction (3d Ed.), p. 548, sec. 5208; 82 C.J.S. Statutes § 301, p. 517; 168 A.L.R. 628; and 50 Am.Jur., Stats., p. 58, sec. 39. In England, the distinction between a specific and general reference is not recognized. There the incorporating reference, unless the adopting statute provides otherwise, does not carry changes thereafter made in the adopted statute. See Legislation--By Reference, 1950 Wis.Law Review 726.

The distinction between a general and a specific reference lies in the manner of reference and what is incorporated. A specific reference refers specifically to a particular statute by its title or section number and incorporates only a part of the law on a subject. A general reference refers generally to the law on a subject and incorporates the entire subject matter. 2 Sutherland, Statutory Construction (3d Ed.), p. 547, sec. 5207; George Williams College v. Williams Bay, supra. The charter of the plaintiff referred to the specific section 15 of Chapter 67, Revised Statutes of 1858, which dealt only with exemption from taxation and special assessments of cemeteries incorporated under Chapter 67. The reference was not to the law of cemeteries generally. It, therefore, follows that the reference being specific, the repeal of Chapter 67 of the Revised Statutes of 1858 by the Revised Statutes of 1878 did not rpeal the exemption granted to the plaintiff.

However, the respondent City claims that this rule of construction has been repudiated by Glendenning Motorways v. Green Bay & W. R. Co., 1949, 256 Wis. 69, 39 N.W.2d 694, which case was cited and discussed in Borden Co. v. Minneapolis, St. Paul & S. S. M. Ry. Co., 1955, 270 Wis. 601, 72 N.W.2d 336, and Lang v. Chicago & N.W. Ry. Co., 1951, 258 Wis. 610, 46 N.W.2d 844. It is true this court failed to apply this rule of construction to a specific reference in the Glendenning case. That case involved the applicability of sec. 85.92, Stats., which required any motor vehicle described in sec. 40.34, Stats., and sec. 194.01, Stats., to come to a full stop before crossing the main line tracks of a railroad. It was urged that sec. 85.92 only applied to busses but the court found by reference to sec. 194.01 that the section also applied to motor carriers of property. The opinion does not point out that sec. 194.01 had been amended to include motor carriers of property after the date of reference and the point was not raised in the three cases cited and relied on by the court. The most that can be said is this court failed to apply the rule of construction of specific reference. However, the decision did not reject the rule or discuss it.

The City argues Chapter 205 of the Revised Statutes of 1878 clearly evinces an intent to repeal all prior statutes which were incorporated in older statutes and into private and local laws. True, Chapter 67 of the Revised Statutes of 1858 was expressly repealed by sec. 4978 of Chapter 205 but we find no intent to repeal the exemption of the plaintiff granted to it in its special charter by reference to sec. 15 of Chapter 67 from that fact or because Chapter 59 of the Revised Statutes of 1878, as re-enacted relating to cemeteries generally, contained no provision for their exemption from special assessments. The Revised Statutes of 1878 were not such an enactment dealing specifically with a particular subject as to make Gymnastic Association of South Side of Milwaukee v. City of Milwaukee, 1906, 129 Wis. 429, 109 N.W. 109, or State ex rel. Thompson v. Beloit City School District, 1934, 215 Wis. 409, 253 N.W. 598, applicable. These cases held a general enactment superseded an earlier special act on the ground the legislative intent to do so was found in the language of the general act.

The final question presented is whether sec. 66.64, Stats., which was sec. 75.65 in the older statutes and was enacted in 1903, repealed the plaintiff's exemption as decided by the trial court. This section enacted as Chapter 425, Laws of 1903, was entitled 'An Act making the property of municipal, railroad and other corporations, liable for special assessments for local improvements, and providing for the collection thereof.' It provided:

'The property of every county, city, village, town and school district, within this state, and of every corporation, company or individual operating any railroad or street railway, telegraph, telephone, electric light or power system, or doing any of the business mentioned in chapter 51 of the statutes of 1898, and of every other corporation or company whatever, shall be in all respects subject to all special assessments for local improvements * * *.'

The City contends the language of this section was intended to be complete, all embracing and to cover the subject matter of special assessments and, therefore, it is reasonably apparent that the legislature intended by implication to repeal the plaintiff's exemption. The City relies on the Glendenning case, the Thompson case, and Chippewa & Flambeau Imp. Co. v. Railroad Comm. of Wis., 1916, 164 Wis. 105, 159 N.W. 739. The appellant...