Wells v. City of Milwaukee

• Decision Date: 30 April 1897
• Citation: 96 Wis. 116,70 N.W. 1071
• Parties: WELLS v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

96 Wis. 116

70 N.W. 1071

WELLS

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Sarah H. Wells against the city of Milwaukee, the Western Paving & Supply Company, and another. From a judgment in favor of plaintiff, defendant company appeals. Reversed.

Plaintiff owned 60 feet frontage on Wisconsin street, of lot 7, block 22, in the Seventh ward of the city of Milwaukee, and this action was brought to set aside a special assessment thereon for laying an asphalt pavement in front thereof. The complaint sets forth, among other things, that the proceedings to charge the property with such special assessment were had in 1894, under chapter 184, Laws Wis. 1874, being the charter of the city of Milwaukee, and the acts amendatory thereof; that the work was done by the defendant the Western Paving & Supply Company under contract duly entered into with the city of Milwaukee; that on completion of such contract there was issued to such company a certificate calling for $320.95 as the amount chargeable to plaintiff's property assessed thereon as and for work done under such paving contract. The allegations of fact relied upon to avoid the special tax and certificate issued therefor are to the effect that the contract price for the work which was charged to the abutting property included keeping the pavement in repair for five years after its completion, setting limestone protecting curbing at the intersection of unpaved streets and alleys and at such other places as might be directed by the city engineer, and the expense of elevating the cross walks for the width of eight feet at the intersection of streets and alleys, and putting gutters along the same; that the specifications filed required such work to be done as a part of the paving improvement; and that by reason of such requirement the charges against plaintiff's property were greatly increased over and above the amount legally chargeable thereto. The complaint alleges that plaintiff refused to pay the amount called for by the special tax certificate, whereupon such tax was duly extended on the tax roll of the city for the year 1894 against plaintiff's property, and that within the time required by law plaintiff paid all taxes on her property for such year, except such special tax. The relief prayed for was that the said special assessment and the certificate referred to be declared void, that the defendant city and its treasurer be restrained from selling plaintiff's property for the payment of the said special assessment, or any part thereof, and that she recover of the defendants her costs and disbursements. To the complaint defendants answered separately, setting up the provisions of the paving contract in regard to keeping the pavement in repair for the period of five years, and alleging that such provision did not increase the bid price for doing the work to exceed 5 per cent. of the total cost. On the 29th day of June, 1896, plaintiff moved the court for an order striking out such answers as frivolous, and for judgment. Such proceedings were thereafter duly had that such motion was granted, and judgment thereupon entered in accordance with the prayer of the complaint. From such judgment the defendant the Western Paving & Supply Company appealed.Hoyt, Ogden & Olwell and Charles H. Hamilton, for appellant.

Wells, Brigham & Upham and W. E. Black, for respondent.

MARSHALL, J. (after stating the facts).

The city charter of the city of Milwaukee provides that: “No person shall be permittedto institute any action or proceeding to set aside any assessment or special tax * * * upon any lot or tract of land, * * * unless such person shall first pay or tender to the proper party, or deposit for his use with the treasurer, the amount of all state, county and city taxes that may remain unpaid on such lot or tract, together with the interest and charges thereon.” Laws 1874, c. 184, p. 427. To meet such provision, it is alleged in the complaint that the plaintiff, within the time specified in the tax warrant, paid all taxes levied and assessed against his premises for the year 1894, except the amount assessed against such premises for the cost of said asphalt pavement and resetting the old curbing. It is claimed that such allegation is insufficient; hence that the complaint fails to state a cause of action. It is unnecessary to determine the sufficiency of such allegation, for that does not go to the cause of action, but to the remedy to enforce it. Failure to pay the legal taxes in compliance with the charter was a condition precedent, strictly so called, to be taken advantage of by demurrer or by plea in abatement; otherwise to be treated as waived. Appellant failed to object in the proper manner, hence it is foreclosed on that point. The subject was fully discussed, and the rule applicable stated and applied in Lombard v. McMillan (decided at the present term) 70 N. W. 673. It is not contended but that all the provisions of the charter were complied with up to and inclusive of the assessment of benefits and determination of the basis upon which the cost of the improvement should be apportioned and charged to the abutting property. But it is insisted that no authority existed for including in such cost keeping the streets in repair for a series of years, putting in protection curbing across unpaved streets and alleys, and raising and constructing cross walks, and that the inclusion of such elements rendered the special tax void. This court so held in Boyd v. City of Milwaukee, 92 Wis. 456, 66 N. W. 603, and appellants do not seek, as we understand it, to reopen what was there decided. That case came to this court on appeal from an order of the trial court granting an injunction pendente lite. The question of whether the property owner should be compelled to pay that part of the tax which might legally have been assessed against his property as a condition of being relieved from the illegal and unjust excess was not decided. Appellant now contends that respondent should be so required, and that the trial court, instead of determining as a matter of law that the illegal elements in the tax could not be separated from the portion justly and equitably chargeable to the property, or that, if so separable, it was not the duty of the trial court to resort to evidence to make such separation, should have tried the issue of fact tendered on that subject, taken the evidence, determined the facts, and then not granted relief to respondent except upon condition of her paying the just and equitable part of the special tax. The rule invoked by appellant was early laid down by this court, and has become thoroughly intrenched in the jurisprudence of this state, though perhaps not heretofore clearly extended so as to meet a case like this. It is based on the familiar principle of equity jurisprudence that he who seeks equity must do equity. Following such principle, it is well established that a court of equity will not grant relief to restrain a tax sale, cancel a tax certificate, or restrain the issue of a tax deed thereon, except upon terms that the taxes be first paid to which there are no objections, or which, in justice and equity, the property owner ought to pay. Hersey v. Board of Sup'rs, 16 Wis. 185;Bond v. City of Kenosha, 17 Wis. 284; Myrick v. City of La Crosse, Id. 442; Mills v. Gleason, 11 Wis. 470. Though, for a time, these adjudications were supposed to have been somewhat discredited, reference being had to Marsh v. Board of Sup'rs, 42 Wis. 502,Tierney v. Lumbering Co., 47 Wis. 248, 2 N. W. 289,Plumer v. Board of Sup'rs, 46 Wis. 163, 50 N. W. 416, and some other cases that might be cited, the doctrine of the early cases has since been repeatedly affirmed, and it stands now unassailable in this court. Fifield v. Marinette Co., 62 Wis. 532, 22 N. W. 705;Wisconsin Cent. R. Co. v. Lincoln Co., 67 Wis. 478, 30 N. W. 619;Canfield v. Bayfield Co., 74 Wis. 60, 41 N. W. 437, and 42 N. W. 100;Boorman v. Juneau Co., 76 Wis. 550, 45 N. W. 675;Green Bay & M. Canal Co. v. Outagamie Co., 76 Wis. 587, 45 N. W. 536;Kaehler v. Dobberpuhl, 56 Wis. 480, 14 N. W. 644;Hixon v. Oneida Co., 82 Wis. 515, 52 N. W. 445. It is the settled doctrine of this court that it is not enough to avoid a tax in equity to show that the proceedings were irregular, or even void, but, in addition, it must also be shown that the taxes were inequitable (Hixon v. Oneida Co., supra); that, where taxes are legal, or, whether strictly legal or not, are just and equitable, and are joined with such as are illegal and inequitable, the illegal excess, if it can be separated, is only conditionally voidable in equity, the condition being payment of the balance of the taxes. Wisconsin Cent. R. Co. v. Lincoln Co., supra. Such equitable rule has been crystallized into legislative enactments, several of which followed promptly upon, and may safely be assumed to have been caused by, holdings of this court supposed to constitute a departure from the early rule governing the subject. The court promptly retraced its steps in that regard, gave full effect to such legislative enactments, and carried the spirit of the rule into effect in respect to all questions affecting taxation to which it was applicable, so that, as said by Mr. Justice Taylor in Fifield v. Marinette Co., supra, “The effect is to compel every taxpayer who comes into a court of equity to...