US v. 150.29 ACRES OF LAND, ETC., IN MILWAUKEE C., WIS.

Decision Date19 May 1943
Docket NumberNo. 8232.,8232.
PartiesUNITED STATES v. 150.29 ACRES OF LAND, MORE OR LESS, IN MILWAUKEE COUNTY, WIS., et al. ELINE'S, Inc., v. TOWN OF MILWAUKEE, WIS., et al.
CourtU.S. Court of Appeals — Seventh Circuit

James D. Shaw, Martin R. Paulsen, Walter D. Corrigan, Sr., Kenneth F. Webster, and Francis H. Parson, all of Milwaukee, Wis., for appellant.

Fred W. Smith, Department of Justice, of Washington, D. C., John E. Martin and Harold H. Persons, Asst. Attys. Gen., and C. R. Dineen and Geo. H. Gabel, both of Milwaukee, Wis. (Oliver L. O'Boyle, Corp. Counsel, and C. Stanley Perry, Asst. Corp. Counsel, both of Milwaukee, Wis., of counsel), for appellees.

Before KERNER and MINTON, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

On April 20, 1942 the United States filed in the District Court of the United States for the Eastern District of Wisconsin a petition for the condemnation of certain lands owned and occupied by the appellant, Eline's, Inc. On the same date the court entered an order for possession of the unoccupied part as of April 20, 1942, and the occupied part as of April 30, 1942, and the United States accordingly went into possession of part of the property and began the demolition of dwellings and other buildings thereon and the construction of new buildings, as well as the repairing and remodeling of large factory buildings then upon the premises. Some of the tenants of the appellant, with the consent of the United States, were permitted to remain in possession of part of the premises until April 30, another until June 15, another until July 1, and another until August 1.

On June 16, 1942 the appellant and the United States entered into an option agreement in writing for the sale to the United States of the property in question. The United States accepted the option on August 1, 1942. The option price was $2,290,000, and it was provided in the option agreement that on the payment of this sum, the appellant would execute to the United States a special warranty deed to the property. It also was provided in the option that if the United States did not wish to take title by deed from the appellant, the option agreement might be filed in the condemnation proceedings that were pending, and the option price of $2,290,000 should be the compensation to be awarded the appellant for the taking of the property by the United States. The United States decided to file the option agreement in the condemnation proceedings and to accept title through such proceedings at the agreed price of $2,290,000, and on November 10, 1942, filed in said proceedings a declaration of taking of the appellant's property, and paid the $2,290,000 into the registry of the District Court.

Various taxing units of Wisconsin had taken steps, some beginning as early as April 7, 1942, preparatory to the levy and collection of taxes upon the property in question. Assessment was made as of May 1, 1942. On November 12, 1942, the sum of $27,662.10 was extended on the tax rolls against the property. On December 21, 1942, the clerk of the taxing units involved delivered the tax roll to the treasurer for collection.

The District Court decided that the United States took the land as of November 10, 1942, and was not liable, nor was the property liable, for the taxes, which the court held were levied November 12, 1942, and the lien thereof related back to May 1, 1942, which was the date of the assessment.

Eline's, Inc. has appealed from this order and contends that even if the tax lien did arise as of May 1, 1942, the United States took actual possession of the property April 30, 1942, and that this was the date of taking, notwithstanding the fact that the United States did not get title until November 10, 1942, the date of the filing of the declaration of taking, and that therefore the property could not thereafter be taxed by Wisconsin as it belonged to the United States.

Secondly, the appellant contends that the lien for taxes arose November 12, 1942, the date the taxes were extended on the tax roll, which was two days after the United States acquired title, and that therefore the lien for taxes arose after the title was acquired by the United States and could not attach to the property.

The question arises, When did the United States take the land in question? If the taking was of April 30, 1942, the title of the United States was acquired before the tax lien attached and there could be no taxing of the property of the United States. If the date of the taking was November 10, 1942, the further question would arise as to when the tax lien attached, May 1, 1942, or November 12, 1942. As far as the liability of the United States for the payment of the taxes is concerned, it does not make any difference, under the circumstances of this case, when it took the land or when the lien arose. If the United States took the land as of April 30, 1942, when it took possession of a part thereof, no lien for taxes could thereafter attach to this property as against the United States. If the United States took the property as of November 10, 1942, the lien for taxes, if it arose November 12, 1942, could not attach to the property of the United States. This is true not only because of the Wisconsin Constitution and statutes (Article II, Section 2; Wis.Stat. 70.11) but because of the theory of dual sovereignty in our form of government, which prevents the States from taxing the property of the United States Government. Van Brocklin v. Tennessee, 117 U.S. 151, 179, 180, 6 S.Ct. 670, 29 L.Ed. 845. If the taking of the property was of November 10, 1942, and the tax lien arose as of May 1, 1942, the lien did not attach to the property in that event. The United...

To continue reading

Request your trial
26 cases
  • NATIONAL ASS'N FOR ADVANCE. OF COLORED PEOPLE v. Patty
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 21 d2 Janeiro d2 1958
    ...7, 11 88 L.Ed. 9; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Findley v. Odland, 6 Cir., 127 F.2d 948; United States v. 150.29 Acres of Land, 7 Cir., 135 F.2d 878. Avoidance of such guesswork, by holding the litigation in the federal courts until definite determinations on local ......
  • Prudential Ins. Co. v. Zimmerer
    • United States
    • U.S. District Court — District of Nebraska
    • 26 d3 Junho d3 1946
    ...119 F.2d 466; In re Central Railroad of New Jersey, 3 Cir., 136 F.2d 633; Findley v. Odland, 6 Cir., 127 F.2d 948; United States v. 150.29 Acres, 7 Cir., 135 F.2d 878; United States v. Napoleon, 5 Cir., 296 F. 811; and Greer v. Scearce, D.C.Mo., 53 F. Supp. Analysis of the foregoing authori......
  • Romero v. Weakley
    • United States
    • U.S. District Court — Southern District of California
    • 5 d4 Maio d4 1955
    ...7, 11 88 L.Ed. 9; Green v. Phillips Petroleum Co., 8 Cir., 119 F.2d 466; Findley v. Odland, 6 Cir., 127 F.2d 948; United States v. 150.29 Acres of Land, 7 Cir., 135 F.2d 878. Avoidance of such guesswork, by holding the litigation in the federal courts until definite determinations on local ......
  • District of Columbia v. Sussman, 18275
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 26 d1 Julho d1 1965
    ...relates to both. 3 See People of Puerto Rico v. Palo Seco Fruit Co., 136 F.2d 886 (1st Cir. 1943); United States v. 150.29 Acres of Land in Milwaukee County, 135 F.2d 878 (7th Cir. 1943); United States v. Certain Parcels of Land in Philadelphia, 130 F.2d 782 (3d Cir. 1942); Cobo v. United S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT