Chicago & Northwestern Railway Co. v. Forest County

70 N.W. 77, 95 Wis. 80, 1897 Wisc. LEXIS 150

• Court: Wisconsin Supreme Court
• Decided: January 12, 1897
• Status: Published

Opinion

PiNNet, J.

1. The county of Forest was created by ch. 436, Laws of 1885. As thus created, it consisted of two towns therein, named, respectively, Sand Lake and Pelican; and the general laws of the state, in respect to the assessment, levying, and collection of taxes, became applicable to it. By ch. 270, Laws of 1887, the territory of the county was divided into three towns, named therein, respectively, Pelican, Orandon, and Gagen. By the second section of this act it was provided: “ It shall be unlawful for any town in said county to raise or expend an amount exceeding $2,500 in each year, for five years, for town purposes, and it shall be unlawful for any town in said county to raise or expend an amount exceeding $1,500 in each year for five years, for school purposes. The total amount of taxes to he roused or expended in all the towns in Forest county for town and school purposes, shall not exceed the sum of $12,000 in each year, for five year’s. And whenever any town whose boundaries are fixed by section one of this act, is divided into two or more towns within five years, the amount of $2,500 for town purposes, and of $1,500 for school purposes hereby fixed for said town, shall be correspondingly divided, and each part thereof shall be the tax for town and school purposes for each such subdivision.” These restrictions were extended by subsequent statutes, and the amounts increased, until 1895, when the limit of county taxes for county roads was $1,500 and $15,000 for other county purposes, and of town taxes in the town of Orandon was $3,500 for town and $550 for school purposes. The taxes for 1895 for both town and county purposes, as stated, were largely in excess of these limitations.

The defendants insist that the legislation imposing these restrictions is -unconstitutional and void, and that the taxes are valid, upon the ground that such legislation is in violation of subd. 6, sec. 31, art. IY, of the constitution, by which the legislature is prohibited from enacting any special or private law “for the assessment or collection of taxes or for extending the time for the collection thereof; ” and it is contended that the legislation in question, so restricting taxation in the county of Forest and the several towns thereof, is special legislation, and is for that reason void. We think that this objection is well taken. The power to levy taxes is undoubtedly one which belongs exclusively to the legislative department, and, when exercised by a delegate town or city, through its officers, the legislature only exercises a power through its subordinate agents which it could exercise directly. Meriwether v. Garrett, 102 U. S. 472; New Orleans v. Clark, 95 U. S. 644. It is not questioned but that the laws under consideration are special laws. By sec. 32, art. IY, Const., it is provided that “ the legislature shall provide general laws for the transaction of any business that may be prohibited by section 31 ” of that article. It is argued that the enumeration “ for assessment and collection of taxes ” does not embrace every law on the subject of or affecting taxes, and every law not so included may be special, and that the test whether a law relating to taxes is or is not for their assessment or collection is that a law which fixes or affects the time or mode of apportioning taxes to taxables or persons, or of enforcing the taxes so apportioned, is “ for the assessment or collection of taxes,” and must be general; all others are not, and may be special. The difficulty with this contention is, we think, that it construes the provision too strictly and literally, and without regard to the manifest purposes of the section. The object of sec. 31, art. IY, Const., was to restrict and lessen the evils of special legislation, so appropriately and vigorously stated by RyaN, C. J., in Kimball v. Rosendale, 42 Wis. 415.

When Forest county was organized, the general statutes ■of the state applied to the matter of taxation for county, town, and school purposes, in every aspect in which it might be considered, as it did in every other county in the state. This condition, as to Forest county, was so far changed by the legislation in question, which was special in its character, that it was made unlawful for the county, or any town in it, to “ raise and expend ” amounts for the several purposes stated, except those named in the acts relating to Forest county, in any one year. Thereafter the law for imposing and collecting county, town, and school taxes in Forest county was a special law, applicable only to that county, with restrictions or limitations not existing as to any other county in the state. The argument of plaintiff’s counsel overlooks the scope of the statute, which extends to and renders unlawful any and all proceedings whatever for raising taxes in excess of the sums stated in the county and towns named. The sense and meaning of the constitutional prohibition is as broad as the language of the statute, and extends to all the various proceedings required to be taken “ to raise ” money by taxation. It forbids the enactment of special laws touching the entire subject and method of taxation. This wa§ the construction placed upon the constitutional prohibition in Kimball v. Rosendale, 42 Wis. 407, and is decisive of the question. There the act under consideration was to validate taxes that had been charged and extended upon the roll which had not been lawfully voted or levied, and it was urged that the constitutional amendment of 1871 did not forbid the enactment of a special law curing a de: fective execution of a power previously existing, and that the act there in question was not properly an act “ for the assessment and collection of taxes,” the same argument that is urged in support of the legislation here in question. But the contention failed, for the reason that the power to levy, or authorize a levy of, a tax by special act, had been taken away by the constitutional amendment; and that “ a legislature constitutionally restrained from authorizing a thing cannot ratify the thing imperfectly done, under another authority given before the restraint; it cannot ratify what it cannot do, for its ratification must carry present authority back to the time of the thing ratified;” and that all the cases “ supporting legislative authority to pass curative statutes are expressly or tacitly rested upon the power of the legislature to do in the present what it ratifies in the past.” It was accordingly held that the power to ratify the void tax by a special act did not exist, because the legislative power to then impose or authorize it by special act had been taken away, and that in this respect there was “ no distinction between retrospective and prospective legislation.” Ey this case the phrase “for the assessment or collection of taxes ” was thus construed as synonymous with the power to impose or raise taxes; and, as said in Prentice v. Ashland Co. 56 Wis. 345-346, “the word ‘assessment’ goes to the whole statutory method of imposing taxes upon propert/yT We cannot, therefore, hold that the power to pa,ss special laws for imposing or levying taxes survived the constitutional amendment.

The construction that plaintiff’s counsel puts on the provision is too narrow, and ignores in a very great measure the evils of special legislation intended to be suppressed by it, and is quite too technical as applied to the construction of a constitutional provision. The language of the provision is not used in any restricted or technical sense, and the words “ assessment and collection of taxes,” as already remarked, were designed to include the whole operation of raising taxes, from commencement to termination. The words “ assessment ” and “ levy,” as applied to taxation, have been variously defined. The word “ levy ” has been held synonymous with collect,'and that to “assess” a tax is to declare it payable, and tó’ “ levy ” is to collect it, or raise it. Anderson, Law Diet.; Vallé v. Fargo, 1 Mo. App. 345; Moore v. Foote, 32 Miss. 469-479. We consider that the word “assessment,” in the constitutional provision, is not used in the limited sense of valuing property for the purpose of apportioning taxes. The same view of the scope of the constitutional prohibition was taken in Nevil v. Clifford, 63 Wis. 435-447, where it was held that there was no difference between a special act validating a void judgment against a school district, and which would make it the duty of the tax officers to levy a tax to pay it, and a special act which, in terms, directed such tax to be levied; and is also sustained by and in harmony with the cases of State ex rel. Sanderson v. Mann, 76 Wis. 479-480, and State ex rel. Turner v. Bell, 91 Wis. 271. The present case illustrates, in a striking manner, the evil policy of special legislation on the subject of taxation, if the legislation in question can be sustained; for, in a period of about eight years, there have been as many as five special acts on the subject of taxation in this county, to say nothing of the resulting confusion, uncertainty, and litigation. We hold, therefore, that the restriction against special legislation “for assessment or collection of taxes or for extending the time of payment thereof,” embraces all the proceedings for raising money by the exercise of the power of taxation, from the inception of the proceeding to its conclusion, and took from the legislature all jurisdiction, past, present, and future, of special legislation on the subject. The question whether the legislation under consideration is not violative of sec. 23, art. IY, of the constitution, which provides for a uniform system of town and county government, was quite elaborately argued, but, for the reasons already stated, it becomes unnecessary to express any opinion upon this branch of the case.

2. The objection that the town tax of $2,500 was void by reason of the general terms of the resolution for raising it, no specification being made therein of the specific purposes for which it was to be raised, is not available. This precise question was considered and determined, under the provisions of the charter of the city of Superior, substantially as broad as the provisions of the statute in relation to raising town and school taxes (Hayes v. Douglas Co. 92 Wis. 429), and, whatever effect might be given to the objection, in an action at law, to a failure to itemize the tax, it is not available in a court of equity to enjoin or restrain its collection, as the objection does not go to the very groundwork of the tax, and necessarily affect materially its principle, and show that it must be unjust and unequal. It is not enough to authorize the granting of equitable relief in such cases, that the tax proceeding is irregular or void. It must also appear that it is inequitable. Hixon v. Oneida Co. 82 Wis. 515. The portion of the judgment appealed from by the plaintiff is correct, and must be affirmed.

3. The part of the judgment appealed from by the defendants must be affirmed. The property seized for the tax in question was, at the time of its seizure, necessarily used in running and operating plaintiff’s line of road, and the defendants, their officers, etc., were enjoined by the judgment from selling such property, and from seizing or selling for taxes any personal property of the plaintiff, used and necessary for use, in the operation of its road. The franchises and rights of a quasi-public corporation, owing important duties to the public, and the property vested in it necessary for their use and enjoyment and the accomplishment of the purposes for which it was created, constitute an entirety, and, in the absence of special statutory authority, are not subject to be seized and sold on execution, or for mechanics’ liens, or on tax- process. Yellow River Imp. Co. v. Wood Co. 81 Wis. 559-562; Chapman Valve Mfg. Co. v. Oconto W. Co. 89 Wis. 264; Buncombe Co. Comm'rs v. Tommey, 115 U. S. 122, 128; Chicago, M. & St. P. R. Co. v. Milwaukee, 89 Wis. 515; State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 550. The subject is fully considered in these cases, and an injunction is proper to prevent such seizure and sale. In the cases of Hill v. L. C. & M. R. Co. 11 Wis. 223, and Chicago & N. W. R. Co. v. Ft. Howard, 21 Wis. 45, the court acted upon the theory, without actually considering and deciding the question, that the franchises of a railway company, and its property in use and necessary for their exercise and enjoyment, were not an entirety. These cases are not in accord with subsequent decisions in this and other states, and are not to be regarded as authority on the question. The por-tiomof the judgment appealed from is correct, and must be affirmed.

By the Gourt.— The part of the judgment appealed from by the plaintiff, and the part appealed from by the defendants, are affirmed.