Wisconsin Elec. Power Co. v. City of Milwaukee

• Decision Date: 09 April 1957
• Parties: WISCONSIN ELECTRIC POWER CO., Appellant, v. CITY OF MILWAUKEE, Respondent.
• Court: Wisconsin Supreme Court

Page 344

82 N.W.2d 344

275 Wis. 436

WISCONSIN ELECTRIC POWER CO., Appellant, v. CITY OF MILWAUKEE, Respondent.

Supreme Court of Wisconsin.

April 9, 1957.

Shaw, Musket & Paulsen, Milwaukee, John G. Quale, Milwaukee, of counsel, for appellant.

Walter J. Mattison, City Atty., Ewald L. Moerke, Jr., Asst. City Atty., Milwaukee, for respondent.

STEINLE, Justice.

The principal questions involved are: (1) Whether a property owner who appeals from a special assessment for street improvements under the statutory appeal provisions contained in sec. 11.22, Milwaukee City Charter, 1934 Compilation, must pay the amount of the assessment within 20 days from the commencement of such appeal pursuant to sec. 75.62(1), Wis. Stats., as a condition of maintaining such appeal proceeding, (2) Whether a property owner who appeals from a special assessment for street improvements under the statutory appeal provisions contained in sec. 11.22, Milwaukee City Charter, 1934 Compilation, must, as a condition precedent to taking such appeal, first have paid such assessment, filed a claim for refund, and have allowed the Common Council sufficient time in which to act on the claim, and (3) Whether the provisions of sec. 24.40 of the Milwaukee City Charter are applicable to a situation such as that at bar.

Sec. 11.22 of the Milwaukee City Charter, 1934 Compilation, ch. 184, sec. 11, ch. VII, Laws of 1874, provides:

'The owner of any lot, or tract of land, or tenement, who feels himself aggrieved by such assessment, as confirmed by the common council, as to the amount of benefits thereby adjudged to accrue to him by reason of any improvements charged against his lot or parcel of land, or the amount of damages, costs and charges, arising to such owner from an alteration of grade, may within twenty days after such confirmation by the common council, appeal therefrom to the circuit court of Milwaukee county; and such appeal shall be taken, tried and determined, and bonds for costs shall be given, and costs awarded therein, in like manner as in cases of appeals to the said circuit court provided for in chapter six of this act. Such appeal shall not affect the rights of the contractor, or the proceedings in reference to his contract, but the certificate against the lot or parcel of land in question, shall be given as if no appeal had been taken; and in case the appellant shall succeed, the difference between the amount charged in the certificate and the amount of the benefit finally adjudged, shall be paid by the city out of the proper ward fund, (since 1907, the general city fund) to the appellant, but not until he shall have done the work in question, or have paid the certificate issued for doing the same. The amount assessed by the commissioner of public works, or finally adjudged on appeal, for damages, costs, and charges arising from an alteration of the grade, in excess of the amount charged against property deemed benefited, shall be paid by the city out of the proper ward fund, to the person or persons thereto entitled, within one year after the confirmation of the assessment by the common council or after final adjudgment therefor rendered by the court on appeal, as aforesaid; provided, that the time during which an appeal from such judgment may be pending in the supreme court shall not be deemed part of the year so limited.'

Ch. 6 of the Act referred to in sec. 11.22 of the Milwaukee City Charter provides:

'Any person or persons owning or having any interest in any property affected by such assessment may, within 20 days after the confirmation of such assessment by the Common Council, appeal therefrom to the Circuit Court of Milwaukee County, by filing with the clerk of said Circuit Court his notice of appeal setting forth therein his interest in the premises and the grounds of his appeal, together with a bond to the City of Milwaukee in the penal sum of $500 conditioned for the payment of all costs that shall be adjudged against him on such appeal; which bond shall be signed by at least two sufficient sureties each of whom shall make an affidavit endorsed upon such bond that he is worth $500 over and above all his debts in property not exempt from execution; and said bond and sureties if objected to by the city attorney shall also be approved by the judge of said court. Such appeal shall be ineffectual unless the appellant shall also within twenty days serve a copy of his notice of appeal and bond upon the city attorney.'

Sec. 75.62(1), Stats., provides:

'Conditional Payment. 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 20 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.'

Sec. 74.73(1), Stats., provides:

'Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the town, city, or village, whether incorporated under general law or special charter, which collected such tax in the manner prescribed by law for filing claims in other cases, and if it shall appear that the tax for which such claim was filed or any part thereof is unlawful and that all conditions prescribed by law for the recovery of illegal taxes have been complied with, the proper town board, village board, or common council of any city, whether, incorporated under general law or special charter, may allow and the proper town, city, or village treasurer shall pay such person the amount of such claim found to be illegal and excessive. If any town, city, or village shall fail or refuse to allow such claim, the claimant may have and maintain an action against the same for the recovery of all money so unlawfully levied and collected of him. Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter.'

Sec. 24.40 of the Milwaukee City Charter provides:

'No person shall be permitted to institute any action of proceeding to set aside any assessment or special tax hereafter levied or assessed upon any lot or tract of land, or to set aside any deed executed in consequence of the nonpayment of such taxes and of the premises therefor, 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.'

It appears without dispute that Wisconsin Electric Power Company has not paid the amounts of the special assessments in question. Appended to the motion to dismiss the appeal was an affidavit of the City Treasurer which recited that the special improvement assessments in question were placed on the 1953, 1954, and 1955 tax rolls, each representing an installment of taxes as levied against the property of appellant, and that the same were not paid, and that the tax...