Wis. Real Estate Co. v. City of Milwaukee

• Decision Date: 19 November 1912
• Citation: 151 Wis. 198,138 N.W. 642
• Parties: WISCONSIN REAL ESTATE CO. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

151 Wis. 198

138 N.W. 642

WISCONSIN REAL ESTATE CO.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Nov. 19, 1912.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by the Wisconsin Real Estate Company against the City of Milwaukee and others to restrain the collection of a special assessment. From an order requiring the deposit of the amount of the tax as a condition precedent to the maintenance of the action, plaintiff appeals. Order affirmed.

Plaintiff brought action to restrain the defendants from collecting a special assessment of $7,173.12 levied against plaintiff's property, consisting of a great many lots, for the construction of house drains, claiming that the assessment was void because of the following, among other, irregularities in the proceedings had therefor: (1) The drains were ordered laid before the streets were ordered to be paved or repaired, contrary to section 17 of chapter 8 of the city charter; (2) as to a portion of one street, no notice was given the property owners to construct the drains, or to the contractors for the construction of the same, as provided for in said section; and (3) upon information and belief it is alleged that no gas mains, water mains, nor sewers had been laid on parts of the streets. By order of the court the plaintiff was required, pursuant to the provisions of section 1210h--1, Stats., to deposit the amount of the tax as a condition for maintaining the action. That section provides: “Whenever any action or special proceeding is hereafter commenced to set aside any sale of lands for the nonpayment of taxes, or to cancel any tax certificate, or to restrain the issuing of any tax certificate or tax deed, or to set aside any tax, for any error or defect going to the validity of the assessment and affecting the groundwork of such tax, within twenty days after the commencement of such action the plaintiff in such action, or special proceeding shall pay or cause to be paid to the county, town, city, or village officer entitled to receive the same, the amount of taxes, interest and charges levied against the said lands involved in such action, as a condition of maintaining said action.” Section 1210h--2 provides that, if a reassessment is ordered, the court shall upon completion thereof determine the amount which, according to the reassessment, the plaintiff ought justly to have paid upon the lands involved in the action or special proceeding. Section 1210h--3 provides the plaintiff shall be entitled to recover judgment for the amount, if any, he so paid in excess of the amount the court shall finally determine he ought to have paid on the land involved in the action, with interest from the date of such payment. From the order requiring the deposit of the amount of the tax as a condition precedent to the maintenance of the action, the plaintiff appealed.Miller, Mack & Fairchild and W. F. Adams, all of Milwaukee, for appellant.

Daniel W. Hoan, City Atty., and Clifton Williams, Special Asst. City Atty., both of Milwaukee, for respondents.

VINJE, J. (after stating the facts as above).

[1] Is the order appealable? Neither party has raised the question; but, since this court acquires no jurisdiction to consider the merits unless it is appealable, the question of the appealability of an order is always involved in a consideration of its merits. Hyde v. German National Bank of Oshkosh, 96 Wis. 406, 71 N. W. 659;In re Minnesota & Wis. R. Co., 103 Wis. 191, 78 N. W. 753;Sioux Land Co. v. Ewing, 148 Wis. 600, 135 N. W. 130.

[2] Confessedly it is not an order affecting a substantial right made in an action which in effect determines it and prevents a judgment from which an appeal might be taken; neither is it an order affecting a substantial right made in special proceedings. It is made in an action and, in that respect at least, partakes of the nature of a provisional remedy. The effect of this order is to impound the money in dispute and hold it for the use of defendant if plaintiff fails in the action. To that extent it grants a provisional remedy to defendants in this class of actions not enjoyed by defendants in actions generally, and therefore must be held to be appealable under subdivision 3 of section 3069, Stats. 1898, as an order granting a provisional remedy.

[3] Plaintiff contends that the order was improperly made for three reasons: (1) Because chapter 295 of the Laws of 1909 has no application to special assessments; (2) because, even if it does apply to them, it does not affect the instant case, where the proceedings taken by the municipal authorities are void ab initio; and (3) that, if it does apply, it is unconstitutional. While it is true that generally there is a clear distinction between taxes and special assessments and between statutes relating to taxes and statutes relating to special assessments, yet the word “tax” has often been held to be broad enough to include a special assessment. Yates v. City of Milwaukee, 92 Wis. 352, 66 N. W. 248;Sheboygan County v. City of Sheboygan, 54 Wis. 415, 11 N. W. 598;Dalrymple v. City of Milwaukee, 53 Wis. 178, 10 N. W. 141. Whether or not the word “tax” in a statute includes a special assessment must generally be gathered from the context of the particular statute, the intent of the Legislature as ascertained from the general scope of the act, and of the related acts of which it is designed to become a part. Marine Co. v. City of Milwaukee, 138 N. W. 640, decided herewith.

It is urged that since section 1210h--1 refers only to taxes, tax certificates, and tax deeds, and does not anywhere mention special assessments, they are not included within its provisions. It should be borne in mind, however, that, when tax proceedings have reached the stage of a tax sale, tax certificate, or tax deed, there is no longer any need to discriminate between general taxes and special assessments. Both are included in the sale, certificate, and deed. Were it intended to exclude either, express mention of such exclusion would be made, otherwise the natural construction of the language is to apply it to whatever may be included in the sale, certificate or deed; namely, to both special assessments and general taxes. In Milwaukee the tax sale is for both general and special taxes, and both are included in the same certificate, and the same deed is based on the sale of both. See sections 15, 19, 24, 24a, and 27, of chapter 18 of the city charter. Attention is also called to the fact that the subhead of the statute under which section 1210h--1 falls is entitled, “general taxes; reassessment when assessment void.” But under such subhead, which begins with section 1210b and ends with section 1210j, fall sections 1210d, 1210e, 1210f, and 1210h, which relate to or mention special assessments. So the title of the subhead furnishes no safe or satisfactory criterion for determining whether or not the word “tax” in section 1210h--1 includes or excludes special assessments.

The further argument is made that, since section 1210h mentions both general taxes and special assessments, section 1210h--1, which does not mention special assessments, should be construed not to apply to them. Section 1210h--1 was created by chapter 295 of the...