Sage v. Town of Fifield

32 N.W. 629, 68 Wis. 546, 1887 Wisc. LEXIS 124

• Court: Wisconsin Supreme Court
• Decided: April 12, 1887
• Status: Published

Opinion

Taylor, J.

The appellants insist that the circuit court erred in refusing to dissolve the temporary injunction — (1) because the complaint does not state facts which, if admitted to be true, would justify the court in granting the relief prayed for in the complaint, even if it were admitted that the electors of said town had no authority to vote a road tax upon the taxable property of said town exceeding the sum of $2,000; and (2) because the answers of the appellants show clearly that there was no intention on the part of the defendants to levy or collect a road tax in said town for the year 1886 in excess of the amount authorized by the laws of the state.

It seems to us that, unless we overrule the case of Judd v. Fox Lake, 28 Wis. 583, we must hold that the plaintiffs have not in their complaint stated facts sufficient to entitle them to equitable relief. In that case the complaint alleged that the electors of the town illegally voted to raise a tax of $500 upon the taxable property of the town for the purpose of graveling a street within the village of Fox Lake, and further alleged that the officers of the town intended and threatened to proceed to gravel said street in pursuance of said vote, and to expend thereon the said sum of $500 at the cost and expense of the tax-payers of the town of Fox Lake, and to draw upon and sign orders on the town treasurer for the payment of the said $500, and take any steps necessary and do any official act in furtherance thereof, etc.; that they threaten and intend to insert, or cause to be inserted, the said sum of $500 in the tax roll of said town, etc. The relief prayed in said complaint was that the defendant be enjoined from carrying said resolution into effect, and from doing any work, or expending any money, or certifying, assessing, or levying any tax, under said resolution, and in pursuance or in furtherance thereof, and that said resolution and the proceedings therein may be declared null and void, and further praying for a perpetual injunction, etc. An injunction had been issued in that case, as in the case at bar, and the defendants moved to dissolve the injunction upon a demurrer to the complaint and upon affidavits denying some of the statements of the complaint. The injunction was dissolved, and the plaintiffs appealed to this court. Upon such appeal this court affirmed the order. Some of the facts stated as appearing in said case are taken from the printed case therein, and do not appear in the report of the case. Chief Justice DixoN, in delivering the opinion of the court,says: “The motion here being equivalent to a demurrer to the complaint for want of equity or want of jurisdiction, the question presented is whether the complaint states any sufficient ground for equitable cognizance or for relief by the writ of injunction.” After citing and commenting upon the cases of Peck v. School Dist. 21 Wis. 516, and Whiting v. S. & F. du L. R. Co. 25 Wis. 161, the learned chief justice says:

“ The case differs materially from all these. It is not the case of an apparently valid contract entered into by the officers of the corporation, but which is in reality invalid by reason of some extrinsic defect; not one of the impending unauthorized execution and delivery by the officers of negotiable paper which, in the hands of a holder for value without notice, will become valid and obligatory against the corporation; and not one where any apparent lien has been created or cloud exists upon the title to real estate. It is, supposing the resolution of the voters in town meeting to have been unauthorized and the proposed tax illegal, at most a mere anticipated or threatened invasion of the legal rights of the plaintiffs, which as yet has ripened into nothing injurious or detrimental to them at all, and perchance may never do so, but which, if it ever should, would not in its nature be irreparable, but might be redressed by the ordinary processes known to courts of law and equity. Should the officers of the town attempt to carry the resolution into effect, and assess a tax wholly unauthorized and illegal, as the complaint charges, the plaintiffs will have their action at law to recover back the money if paid under protest or on levy or distress of personal property; and if the same be extended against the real' estate, they will also have their suit in equity to remove the supposed lien and cloud from their title. The complaint presents, therefore, the naked question, whether under such circumstances the aid of equity can be successfully invoked to declare in advance that certain acts of public officers, proposed or threatened in the future to be done, will, if performed, be illegal and void. We are clearly- of opinion that it cannot.”

I have quoted at length from the opinion in the case above cited, because it seems to dispose of one of the main questions arising in the case at bar.

The cases of Lawson v. Schnellen, 33 Wis. 288; Phillips v. Albany, 28 Wis. 340; Lynch v. E., L. F. & M. R. Co. 57 Wis. 430,—are all cases where the towns were about ille-gaily to issue negotiable bonds which would be good in the hands of bona fide purchasers, and come within the rule stated in Whiting v. S. & F. du L. R. Co. supra. The case of Nevil v. Clifford, 55 Wis. 161, was sustained upon the allegations of fraud and collusion between the plaintiff in the judgment and the officers of the district, and it was doubtful whether the tax-paji-ers could, in an action to avoid the tax levied to pay such judgment, attack the validity of the same. See pages 170 and 171 of report. The case of Willard v. Comstock, 58 Wis. 565, was an action to restrain the county officers from fraudulently and illegally appropriating the property of the county, and the action was sustained on the ground that the tax-paj'er had no other adequate remedy. If the authorities of the municipality fraudulently squander its property and assets, the tax-payer is irreparably injured, because it necessitates the collection of greater taxes to pay the legitimate charges against the municipality; and unless, therefore, the tax-payer can restrain the unlawful and fraudulent disposition of such property of the municipality, he is entirely remediless. None of the cases in this court, since the case of Judd v. Fox Lake, are in conflict with the decision in that case. The rule there laid down was approved and acted upon in the case of Gilkey v. Merrill, 67 Wis. 459. We think the circuit court should have dissolved the injunction on the ground that the complaint did not state facts sufficient to constitute an equitable cause of action.

We are also of the opinion that the answer of the defendants shows that there had been no substantial violation of the law in voting $5,000 road taxes on the town. The laws in force regulating fhe assessment and collection of highway taxes in 1886 are subd. 9, sec. 776, and secs. 1239, 1240, R. S. 1878, as amended by ch. 163, Laws of 1883. By sec. 1240, as amended by ch. 163, Laws of 1883, the board of supervisors and the electors of the town had the power to levy and assess upon the taxable property of the town of Fi-field the sum of $2,000, and/in addition thereto, the further sum of seven mills upon the assessed valuation of the property of said town. The assessed value of the property of said town was over $500,000. The limit of the authority of the electors and supervisors combined to raise road taxes in said town, under any reasonable construction of the statute, would therefore exceed the sum of $5,000, viz., $2,000 voted by the town, and seven mills by the supervisors. But it is alleged by the learned counsel for the respondents that the power of the electors to vote highway taxes in said town is limited, by the proviso to said sec. 1240, to the sum of $2,000, and that any additional taxes for road purposes must be fixed and determined by the board of supervisors, and not by the electors. This is not strictly true, as the same section says the supervisors shall assess any amount of taxes on the property of said town, not exceeding fifteen mills on the dollar, which shall be ordered to be assessed at the next preceding town meeting. Under said sec. 1240 as amended, the electors of the town had the power to vote $2,000 as a gross sum upon the property of said town, and, in addition, the supervisors had the power to levy the sum of seven mills on the dollar valuation, making in all a sum exceeding $5,000; or, according to the construction given to these statutes by Judge BuNN in the case of Nelson Lumber Co. v. Loraine, 24 Fed. Rep. 456, the electors might have directed the board of supervisors to levy upon the taxable property of said town so many mills, in excess of the seven mills which they were authorized to levy without any direction, as would raise a tax not exceeding the sum of $2,000 over and above what would be raised by the seven-mill tax. In. either event, therefore, there was power to collect over $5,000 road taxes in said town.

Griving a construction to these statutes most favorable to the tax-payer, the limit of taxation for road purposes in said town exceeded tbe sum-of $5,000. Subd. 9, sec. 116, K. S., authorizes tbe electors at tbe town meeting to vote upon tbe question of collecting tbe highway taxes in money, “ and in case it shall be decided by such vote to collect such taxes in money, such taxes for that year, and until such vote shall be rescinded, shall be collected and paid into the treasury at the same time and in the same manner as other town taxes.” The answer in this case shows that the electors of said town had voted to collect the highway taxes in money, and that such vote was in full force when the electors voted to rais'e a highway tax of $5,000; and the answer also alleges that such vote of the electors upon the subject of highway taxes has, ever since the vote was passed to collect the highway taxes in money, been taken and considered as a substitute’ for and in lieu of any and all other taxes for highway purposes, including the mill tax, so called.

Under the law requiring the highway taxes to be collected in money as other taxes are collected, it seems to us very clear that the duty of the supervisors as to making out warrants for the collection of such taxes is clearly abrogated ; and if any duty remains on them as a board in fixing the amount of taxes to be raised for that purpose in the town, it is simply their duty, in the absence of any vote of the electors on the subject, to declare the number of mills which shall be assessed on the valuation of the property of said town, and then the amount is to be cai’ried out by the clerk upon the general assessment roll, and collected with the other taxes. In the case at bar the electors have indicated that all the highway taxes in said town for the year shall be $5,000. That sum the electors had the power to vote, with or without the approval of the board of supervisors, as the law gives the electors the right to direct the supervisors to raise fifteen mills on the dollar valuation, provided such fifteen mills does not 'exceed the sum of $2,000 and seven mills on such valuation. In this case the $5,000'does not exceed such sum;, and-.if it be technically necessary that the board should, after the vote of the electors, direct so many mills on the valuation to be raised as would make the sum of the $5,000 voted by the electors, they could do that by directing.7 that Amount to be apportioned upon the assessment roll; and,- according to their answer, that was all that was intended to be done in this case.

There is no equity, therefore, in staying the officers of the town in collecting a tax which the law clearly authorizes, even though some of the formalities of the law may not have been complied with. For anything appearing in this case the officers would have complied with the law literally had they not been enjoined.

By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to that court to dissolve the injunction.