Yates v. City of Milwaukee

• Decision Date: 18 February 1896
• Citation: 66 N.W. 248,92 Wis. 352
• Parties: YATES ET UX. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 352

66 N.W. 248

YATES ET UX.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Feb. 18, 1896.

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

Action by Theodore Yates and wife against the city of Milwaukee and others. From a judgment refusing to vacate an injunction, defendants appeal. Reversed.

This was an action to set aside certain assessments against the premises owned by one of the plaintiffs, Marion J. Yates, the wife of the plaintiff Theodore Yates, particularly known and described as the “Cold Spring Driving Park,” containing about 60 acres of land, and to set aside the sale of the said premises for the amount of said assessment, and the execution of a tax deed thereof by reason of such sale. It appears, from the pleadings and motion papers, that by chapter 450, § 1, Laws 1889, the corporate limits of the city of Milwaukee were enlarged and extended so as to include certain territory of which the premises in question were a part, and added the same to the Fifteenth ward of the city; and the act declares that said territory shall “be subject to the laws, regulations and ordinances governing the said ward and said city. Provided, that portion of the property * * * known as ‘Cold Spring Driving Park’ be exempt from taxation so long as the same shall be leased, used and occupied by the Wisconsin State Agricultural Society for the purpose of holding the annual state fair”; that the plaintiff Marion J. Yates leased the said driving park, May 1, 1886, to B. B. Hopkins and others, for the term of one year from that date, and, at their option, after the expiration of said year, for five years thereafter, ending May 1, 1892; and said lessees sublet the same, April 1, 1887, to the Wisconsin State Agricultural Society, until May 1, 1892, “subject to all the obligations and conditions imposed upon said original lessees by their written lease,”--one of which was to pay or cause to be paid all taxes and assessments which should be assessed against the demised premises during the existence of the lease, and to save harmless the said lessor and her assigns against any liability from cost or damage by reason of such taxes and assessments; and the said agricultural society covenanted in the sublease, to wit, to pay all taxes, general or special, which should be lawfully assessed upon or against said premises during its term; and agreed to promptly pay the same to the proper officers during each year at the time the same may become payable by law. While said premises were in the occupancy of the said agricultural society under said lease, they became a part of the west sewerage district of the city; and an assessment was duly made March 7, 1890, against said premises for a 30-inch sewer along same, in Chestnut street from Washington avenue to Thirty-Third street, and in Thirty-Third street from Chestnut street to a point 12 1/2 feet south of Highland Boulevard, amounting to $1,582.32. The board of public works, under a resolution of the common council, advertised and received bids for the construction of the sewer, and entered into a contract therefor with one Brand, the successful bidder, July 15, 1890, and the work was completed December 12, 1890. Upon the completion of said sewer, the usual certificate was duly issued, January 8, 1891, payable to the said Brand. The said assessment having been carried into the annual tax roll for 1891, and having been returned as unpaid and delinquent, February 3, 1892, the city treasurer sold the said lands for the amount due on the said assessment to the city of Milwaukee, and certificate of sale No. 1,411 was thereupon duly issued to the said city, which was assigned, February 15, 1892, to the defendants John Q. Burnham and Charles T. Burnham, and was afterwards assigned by them to the defendant Sidney B. Knox, who claimed to be entitled to the tax deed. There was included in said certificate of sale the amount of two small assessments on the premises in 1891, for sprinkling streets,--one for $28.10 and the other for $27.07,--which had been returned as delinquent and unpaid; and the premises were sold for the amount of the sewer assessment, with these amounts added, and fees of sale, amounting to $1,637.74. By chapter 82, Laws 1891, the proviso of chapter 450, Laws 1889, exempting said lands from taxation, was so amended as to exempt same from “taxation and from any and all special taxes and assessments for the year 1891,” so long as the same shall be leased, used, or occupied during said year by the Wisconsin State Agricultural Society. This act took effect March 31, 1891. The defendants the city of Milwaukee, C. W. Milbrath, treasurer, and Sidney B. Knox moved, upon these facts, to vacate the injunctional order theretofore granted restraining the issuing of a tax deed on said premises upon said certificate, and from transferring or assigning said certificate, until further order of the court. After hearing, said motion was denied, and the injunctional order was continued until further order of the court, from which order the defendants above named separately appealed.

Hoyt & Ogden, for appellants.

Elliott, Hickox & Groth and Winkler, Flanders, Smith, Bottum & Vilas, for respondents.

PINNEY, J. (after stating the facts).

In the case of Hale v. City of Kenosha, 29 Wis. 605, in considering the distinction between taxes and assessments, it was said that “assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal improvements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvements, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure”; and the language of Bronson, J., in Sharp v. Speir, 4 Hill, 76, that “our laws make a plain distinction between taxes which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city or village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement,” after citing the previous cases in this state on the subject, was declared to be “peculiarly applicable to our system of taxation and assessment.” As such assessments are laid with reference to the special benefit which the owner of...