Hayes v. Douglas County

65 N.W. 482, 92 Wis. 429, 1896 Wisc. LEXIS 220

• Court: Wisconsin Supreme Court
• Decided: March 10, 1896
• Status: Published

Opinion

The following opinion was filed December 17, 1895:

Newman, J.

The point made against the general tax is not, indeed, that it was not authorized to be levied at all, but that it was not authorized to be levied in the manner in which it was levied, nor unless the item criticised — that is, the item “ $61,000, general fund ”— should be included, with a detailed statement of the items which enter into it, in the general statements required to be made and filed by the board of public works and by the city comptroller. It is urged that this detailed statement is a necessary prerequisite to a valid levy of the city’s taxes.

The statute which authorizes the levy of the city’s taxes, and which directs the manner of this levy, is sec. 102 of the city charter, which is oh. 124, Laws of 1891. The section reads as follows:

“ On or before the first day of October in each year, the board of public works shall file with the city clerk a detailed statement of the amount of money that will be required for the ensuing fiscal year in their departments, and the city comptroller shall likewise file a statement of the amount required by the police department, fire department, and the remainder of the general fund, and for the purpose of paying interest for the ensuing year on the public debt and five per cent, of the principal thereof. The city clerk shall, not later than the second Tuesday of October, place such estimates before the city council for their consideration, and the council shall thereupon, bjr resolution, levy such sums ■-of money as may be sufficient for the several purposes for which taxes are authorized, not exceeding the limit provided by law, and in making such levy they shall take into ■consideration the estimated amount that will be received by the city during the fiscal year from licenses.”

This section evidently contemplates that a fund shall be raised in the nature of a general fund, and which it will not be a misnomer to call the “general fund,” for it speaks of :the “ remainder of the general fund.” And in other sections the charter speaks of payments to be made out of the “ general fund.” Secs. 118, 125. The section seems to ■contemplate that at least the amounts required by the police department and fire department are parts of the fund ■denominated the “ general fund,” for they are coupled by the conjunction “and” with “the remainder of the general fund.” There are other purposes for which taxes may be lawfully levied which would seem appropriately to come within the designation of “ general fund.” Such are moneys for the payment of salaries to city officers, the expenses of the health department, of city hospitals, of lighting and cleaning streets, of caring for the sewers, and many other like purposes. But it was contemplated that the city comptroller should make and file an estimate of the entire amount ■of moneys needed to be levied for such general fund. The •charter only requires the statement to specify the amount required. It is not, in terms at least, required to specify in •detail. Nor is it, in terms at least, required that the common council specify in detail the items which go to make .up the sum which it levies. Nor is it, in terms, limited by ■ the amount estimated by the comptroller. But it is directed to “ levy such sums of money as may be sufficient for the several purposes for which taxes are authorized,” up to the ■limit provided by law. This seems to confide to the judg-ement and discretion of the common council to levy such .sums as, in its judgment, are sufficient for all the several purposes for which taxes may be raised, uncontrolled by1 the estimates of the board of public works and the city comptroller. It would seem that the statements of these officers are designed for aids to the judgment of the common council, rather than for limitations upon its power.

This view seems to be re-enforced by sec. 112 of the charter, which provides: “The directions hereby given for the-assessing of lands and personal property, and levying and collecting taxes, shall be deemed directory only, and no error or informality in the proceedings of any of the officers entrusted with the same, not affecting the substantial justice of the tax, shall vitiate or in any wise affect the validity of such tax or assessment.”

It does not appear that a larger sum or sums were levied than were sufficient for the several purposes for which taxes were authorized, nor that any error or informality intervened affecting the substantial justice of the tax; and while it is realized that there are too few safeguards around this power of levying municipal taxes, and that it is a power liable to be abused, and which, very likely, is often abused, no doubt it is a subject difficult of adequate regulation. This regulation is within the province of the legislature, not within that of the court. The court can only enforce the law as it is written by the legislature. And, even if the court should be of opinion that the manner of the levy of this particular tax was so irregular as to render the levy void, still, unless it shall also appear that the tax is excessive or unequal and unjust, so as to affect its substantial justice, a court of equity will not interfere to declare it invalid or to restrain its collection, without payment of the tax. Fifield v. Marinette Co. 62 Wis. 532; Wis. Cent. R. Co. v. Ashland Co. 81 Wis. 1. So no ground is apparent on which the plaintiff can be relieved from the payment of this tax as a condition of the relief which he seeks.

The special assessments for street improvements were all made in the same manner, and all have a common vice; Both charters under which they were respectively made provide that the improvements shall be chargeable to the lots or parcels to be assessed, “ in proportion to the benefits secured thereto.” All of these assessments were made by the frontage rule. In each case the whole amount of benefits to be assessed for the entire improvement was divided by the number of feet fronting on the improvement. This found the benefit accruing to each separate front foot fronting on the improvement. The benefit to each front foot, so found,, multiplied by the number of front feet in each parcel, produced the benefit which was assessed against such parcel. This so-called assessment was made in the office of the city engineer, and without actual view and consideration, by the-board of public works, of the benefits actually accruing to each parcel by reason of the improvement.

It is fundamental that the assessment of benefits shall be made by the rule of apportionment prescribed by the charter; and where the rule of actual benefits is the rule prescribed, as in these charters, such benefits can be assessed only upon an actual view of all the property in the assessment district, and an impartial comparison and estimation of the benefits actually accruing to each parcel from the improvement; and it must be made to appear affirmatively that the assessment has been made in substantial compliance-with the authority given by the charter. Johnson v. Milwaukee, 40 Wis. 315; Watkins v. Zwietusch, 47 Wis. 513;. Liebermann v. Milwaukee, 89 Wis. 336, and cases cited on page 346; Springfield v. Sale, 127 Ill. 359.

In Johnson v. Milwaukee the court say: “ We rest our decision, not upon the rule of assessment, but upon the necessity of assessment, fairly and actually made, upon actual view of the premises to be assessed, of the benefits actually accruing to the premises by the improvement. This must have rested, in the first instance, upon the judgment and 'conscience of the commissioners of public works, which we could not probably have reviewed; that would have been for the common council firstly, and for the circuit court secondly. But we can require the apparent exercise of such judgment and conscience, in an apparently fair and just assessment, made under the conditions of the statute, by the board of public works, as a condition precedent to a valid charge upon the property assessed for the improvement. And where it is apparent that there was none such, it is our duty to hold invalid the attempt to charge the property lia•able to assessment.”

In Liebermann v. Milwaukee the court say: “ The assessment must show upon its face that the board has considered and passed upon all questions made material by the statute, and the results at which they have arrived.- That which the law regards as of the substance of the proceeding we cannot treat as immaterial, nor can presumptions supply its place. We must therefore hold that the assessment in question is void on its face, for a failure to show affirmatively .that it was made in conformity with the authority conferred ¡upon the board of public works by the provisions of the charter referred to.”

When it is required that the assessment shall be according to benefits accruing to each parcel, an assessment by the frontage rule does not show affirmatively a compliance with the statute. While such an assessment is not necessarily erroneous, it is presumed to be so, unless the return shows that the board has considered that matter and finds that the benefits are in the proportion of the frontage of each parcel. State v. Hudson, 29 N. J. Law, 104; State v. Jersey City, 38 N. J. Law, 410; O'Reilley v. Kingston, 114 N. Y. 439; Springfield v. Sale, 121 Ill. 359.

It is evident that these assessments each fail to show upon itheir face that the statute which authorized them was complied with. Hence they must be held to be void.

The plaintiff’s land was not liable, at all, to assessment lor the Grand avenue improvement. It did not front or abut on that improvement, and so, under the charter of 1889, was not in the assessment district.

The assessments for paving Belknap avenue, and for- the < grading of Hill and Ritchie avenues, were made after the enactment of the charter of 1891. The former charter had «constituted the frontage upon the improvement as the district upon which benefits were to be assessed'. The new ■charter formed no assessment district, but declared the cost ■of the improvement to be “ chargeable to the lots and parcels of land benefited thereby.” The purpose of this change ■is manifest. It is fair and just that each parcel of property benefited by the improvement shall bear its proportionate share of the burden. It is matter, of common knowledge ¡that property lying in the vicinity of such improvements ■often derives important benefits from them, although not fronting upon or directly contiguous to them. There necessarily devolved upon the board of public works the duty to ascertain and determine what parcels of land were or would be benefited by the improvement,-— in effect, tó determine the assessment district. It was the duty of that board to include within the limits of the assessment district all parcels of land which in its judgment, fairly' exercised, would be benefited.

In the case of these last-named assessments, the board of public works entirely disregarded this provision of the new charter, and levied the assessments, as theretofore, upon the property fronting the improvement only; and it in no way appears that the board considered the matter, or determined, in the exercise of its judgment, that no other property would be benefited. So wide a departure from the rule of the statute cannot be without important effect upon the validity of the assessment. An assessment, under this statute, which does not distribute the burden fairly upon all the property benefited by the improvement, cannot be just and equal. While mere errors of judgment do not invalidate it, it must appear to be a fair attempt at compliance with the statute. As suggested by Ryan, C. .1., in Johnson v. Milwaukee, 40 Wis. 315, the court may and should require an apparent exercise of the judgment and conscience of the board of public works, in an apparently fair and just assessment, in conformity with the directions of the statute. An intentional omission from the assessment of property benefited must necessarily make the assessment unequal and unjust. Weeks v. Milwaukee, 10 Wis. 242, 264. These assessments were made in entire disregard of the statute, and are presumed to be unequal, and that the inequality is sufficient to justify the interference of a court of equity. Hassan v. Rochester, 67 N. Y. 528, 536, 537; In re New York Protestant Episcopal Public School, 75 N. Y. 324. And because the defects go to the very foundation of the assessment and make it necessarily unequal, the plaintiff is not required to pay his proportion of the assessment as a condition of relief. Hassan v. Rochester, supra; Marsh v. Clark Co. 42 Wis. 502; Meggett v. Eau Claire, 81 Wis. 326.

In the cases of the Belknap avenue improvement and the grading of Grand avenue, the common council issued and sold improvement bonds upon the assessments. This it is authorized by the charter (secs. 131, 132) to do as soon as the amount of benefits chargeable to the real estate has been “ finally determined ” and the contract for doing the work has been let, after giving thirty days’ notice, by publication in a newspaper, of its intention to issue such bonds; and to collect it from the property assessed, by instalments, as special taxes (sec. 136). The charter (sec. 137) also provides that “no action shall be maintained to avoid any of the special assessments of [or?] taxes levied pursuant to. the same,” after such improvement bonds have been issued j and that “ said bonds shall be conclusive proof of the regu-iarity of all proceedings upon which the same are based.” The right to question the validity of these assessments and 'bonds in this action is denied, upon the authority of these provisions of the charter. So the question is presented whether the right of the owner to contest the validity of these assessments can be lawfully taken away by so short a limitation, by a statute which provides for no actual notice.

The assessments of benefits must be finally complete before the contract for doing the work can be let. ‘Sec. 127. The contract may be let after publication of notice for bids for one week. After the contract has been let, the improvement bonds may be issued after thirty days’ notice by publication in a newspaper. No actual notice is provided for, and the bonds may be issued before the work has commenced. So that, if the statute is sustained as a valid limitation, its bar may be complete within forty days after the assessment is finally determined, and regardless of the fact whether the owner has acquired actual knowledge of the proceedings against his property.

These are proceedings whereby property is to be taken in inviium. No man’s property can be lawfully taken or taxed but by due and regular process of law; nor forfeited except by his own omission seasonably to assert his right. It has been already demonstrated that these assessment proceedings are not due process of law, and are invalid to deprive the plaintiff of his property. So the plaintiff’s property has not been effectually taken by these proceedings, unless the plaintiff has debarred himself from contesting the validity of the proceedings by his own laches; and this depends upon the validity of this statute as a statute of limitations.

All statutes of limitation proceed upon the theory that the party has forfeited his right to assert his title in the law by lapse of time and omission to assert it. This necessarily presupposes that a full and fair opportunity has been afforded Mm to try his right in the courts; for it cannot justly be considered that he is in default and laches until such just opportunity has been afforded him and he has failed to avail himself of it. Any attempt to cut off his right without having afforded him such just and reasonable opportunity is not, properly, a statute of limitations at all. It savors rather of spoliation and plunder. Cooley, Const. Lim. (6th ed.), 449. No doubt, under a statute which provides for actual notice to the owner, a shorter limitation could be held reasonable-than where constructive notice only is provided. Under this statute, many an owner may, without fault, be without actual knowledge of the pendency of proceedings against his property, until the bar of thiá statute has foreclosed his-right; and this may all well happen before any work, such as might arrest the attention of resident owners, is actually commenced under the contract. It is not questioned that-all the proceedings relating to the assessment may be supported on notice by publication only; but the fact that the notice provided for is constructive only is an element proper to be considered in determining whether the time limited affords reasonable opportunity for the owner to assert his right. No doubt such time should be allowed as would give a reasonable chance to acquire actual knowledge of the pendency of proceedings against his property, and to ascertain and assert his rights. No absolute rule can be laid down as to what length of time will be deemed reasonable for the government of all cases alike. Different circumstances require-different rules. What would be reasonable in one class of cases would be entirely unreasonable in another. Wheeler v. Jackson, 137 U. S. 245, 255. While it is, no doubt, convenient and desirable, on the part of the municipality, that all questions in respect to the validity of such proceedings shall be put at rest as soon as may be, still there is no such exigency as to justify even a.n apparently unfair abbreviation of the rights of property owners or undue advantage taken. ' The time allowed should be ample to afford a reasonable probability that he would become informed of the proceedings against his property, and be fairly able to assert his right, before it is finally barred. It is considered that, plainly, this statute does not afford such reasonable opportunity, and cannot be sustained as a valid limitation. A short statute of limitations is not an allowable substitute for due process of law. It is utterly subversive of that constitutional protection to private rights of property. The fact that such short limitations have been sustained by some courts does not persuade the court that they are just and supportable on principle.

But it is said the plaintiff’s remedy is limited to an appeal from the assessment. It is true that an appeal is given to> the owner who feels aggrieved by the determination of the board of public works; but this appeal does not stay the progress of the work if the contract has been let, nor the issuing of the certificate against the lot for. the benefit assessed ; and, in case the appellant succeeds on his appeal, the only remedy given him is that the difference between the amount charged in the certificate so issued and the amount adjudged to be paid as benefits accruing to the real estate described in the certificate shall be paid by the city out of the general fund.” Sec. 125. It is also declared that the appeal so given “shall be the only remedy of the owner-of any parcel of land . . . for the redress of any grievance he may have by reason of the making of such improvement.” Sec. 126. It is obvious that upon this appeal only the proper amount of benefits to the particular lot can be investigated. No remedy appropriate to any other wrong is given. It furnishes no remedy by which to avoid an unequal and void assessment. Clearly, the appeal is no adequate remedy for the lot owner in this case; and it will not be presumed that the legislature intended the appeal given to be the exclusive remedy, except as to matters which can be redressed upon the appeal. Pier v. Fond du Lac, 38 Wis. 470.

The question what public purposes will justify the use of money raised by taxation is considered in an extensive note to Daggett v. Col-gan (92 Cal. 53) in 14 L. E. A. 474; and the necessity of benefits to sustain assessments for improvements is the subject of a note to Re Ma-dera Irrig. Dist. (92 Cal. 296) in 14 L. E. A. 755.— Eep.

The Columbian Pair stone tax was altogether unauthorized and void.

It was error to limit the amount of costs to be recovered to $30. The court had exhausted its powers over the matter of the costs when it had determined that the plaintiff should recover them. The law determines their amount. E. S. sec. 2918, subd. 7; Id. sec. 2921; In re Carroll’s Will, 53 Wis. 228.

The judgment should be reversed on both appeals. On payment of the sum of $421, the taxes for general fund hereby held valid, and the sum of $4,497.30, for taxes and assessments conceded by both parties to be valid,— in all, the sum of $4,968.30, with legal interest, that is, with interest at the rate of seven per cent, per annum up to March 27, 1893, and six per cent, per annum thereafter up to the time of payment (Pierce v. Schutt, 20 Wis. 423; State v. Guenther, 87 Wis. 675), the tax certificate and the several special assessments hereby declared void, and the tax for the Colum-bian Pair, should be vacated and set aside.

By the Court. — The judgment of the circuit court is reversed on both appeals, and the cause remanded with directions to render a judgment in accordance with this opinion.

Maeshall, J., took no part.

A motion by the respondents for a rehearing on the plaintiff’s appeal was denied March 10, 1896.