State v. Chicago & Northwestern Railway Co.

112 N.W. 515, 132 Wis. 345, 1907 Wisc. LEXIS 142

• Court: Wisconsin Supreme Court
• Decided: June 20, 1907
• Status: Published

Opinion

Sibbeckee, J.

TJpon the facts alleged tlie state asserts the-right to recover whatever portion of the license fees imposed by sec. 1213, Stats. (1898), remains unpaid for any of the' years embraced in the complaint. In view of the conflicting-claims of the parties as to the nature of this obligation, it seems essential to some of the questions presented on this appeal to first determine the nature of the obligation upon which the state claims the right to recover against the defendants.. This court has so recently considered the question in an extended examination that further elaboration is not required..,

In the case of State v. Railway Cos. 128 Wis. 449, 108 N. W. 594, the nature of the obligation so imposed on railway-companies was exhaustively treated and it was held to be an exaction imposed by the state under the taxing power. In its inception the state proceeds in the usual manner of imposing it as a burden on a privilege and franchise, which the defendant was required to assume as a condition precedent to-exercising the privilege thereby granted. It was said that these incidents to its imposition gave rise to features of a contractual nature, but it was declared that the obligation itself was clearly a tax imposed by the state under its taxing power for the purpose of raising revenue to meet expenses in administering the governmental affairs. This view was also followed in the case of Nunnemacher v. State, 129 Wis. 190, 108 N. W. 627, decided at the same time. The grounds for this conclusion were so exhaustively presented in these two-cases as to leave nothing to be added, and further discussion ait this time can serve no useful purpose. We shall treat the question as at rest, and assume for the purposes of this case that the state seeks to collect unpaid taxes due it from the defendant for the various years covered by the complaint.

The plaintiff insists that the facts stated constitute but, one cause of action, and that it must be treated as having accrued when the last instalment for the year 1904 was due the-state. The trial court seems to have so construed it. This. construction is challenged by defendant upon the ground that the alleged causes of action for unpaid license fees accrued in each year "whenever the defendant defaulted in making payment thereof as required by the statute. This statute provides that railroad companies operating railroads in the state whose gross' earnings per annum equal or exceed $3,000 per mile shall pay four per centum of their gross earnings as an annual license fee, and to this end shall on or before February 10th of each year make and return a true statement of their gross earnings for the preceding year, giving the mileage of road operated by them and the gross earnings per mile per annum, and they thereupon shall apply to the state for an annual license to operate the railroads embraced in the statement. They are required to pay one half of such fee when the license issues and the remaining half on or before August 10th in each year. After this statement has been made and returned to the state treasurer by the railroad companies and approved by the railroad commissioner, the company is to receive from the state treasurer a license to operate the railroads mentioned in such statement “for the calendar year commencing on the first day of January preceding and terminating on the next succeeding thirty-first day of December unless sooner revoked.” Sec. 1212, Stats. (1898), and amendments. The provisions of the statutes show that the primary right of the state, on which it bases its claim against defendant, is an obligation to annually pay the four per cen-tum on its gross earnings in two instalments. This obligation becomes due at the time the statute requires the making and the rendering of such a report and the issuance of the license, and was dischargeable only by payment (State v. Railway Cos. 128 Wis. 449, 108 N. W. 594), and upon default it was enforceable by the state. TJnder the circumstances a right of action as to each of such annual payments must be held to have accrued to the state when the default occurred and an action could have been maintained to compel payment. All tbe elements necessary to constitute a cause of action enforceable by tbe state are thus shown to have existed under tbe facts alleged. Butler v. Kirby, 53 Wis. 188, 10 N. W. 373; La Coursier v. Russell, 82 Wis. 265, 52 N. W. 176. An examination of tbe facts alleged shows that tbe allegations are sufficient to constitute an enforceable cause of action for such parts of each instalment of tbe license fees as remained unpaid for tbe years embraced in tbe complaint, though they are not so definitely and separately stated as contemplated by sec. 2646, Stats. (1898). A liberal construction of tbe complaint and a fair intendment of tbe facts pleaded justify the inference that tbe facts sufficiently set forth independent causes of action for such amounts of tbe annual license fees- as remain unpaid. Tbe defect in form cannot be considered on demurrer. Such irregularity is subject only to a motion to make more definite and certain. Nichol v. Alexander, 28 Wis. 118; Gunderson v. Thomas, 87 Wis. 406, 58 N. W. 750.

Contentions are presented that tbe facts set forth constitute a basis for an action for tbe collection of a debt in which tbe defendant would be entitled to a trial by jury, and that tbe attempt on tbe part of tbe state by cb. 328, Laws of 1905 (secs. 1215 — 31-37, Stats.: Supp. 1906), to provide for an accounting and discovery of all license fees due tbe state from defendant, is an infringement of defendant’s constitutional rights, because it creates a special form of action against certain members of a class, and because it deprives them of tbe right to trial by jury and is violative of tbe constitutional guarantees of due process of law and tbe equal protection of tbe law. These questions will not arise for specific consideration in our view of tbe action. We are of tbe opinion that tbe facts alleged in tbe complaint constitute causes of action in equity for an accounting, regardless of the provisions of cb. 328, Laws of 1905. It appears from tbe complaint that tbe state seeks to recover whatever sums remain unpaid of the annual license fees due it on tbe gross earnings of the railroad company. It is charged that these gross earnings can only be ascertained by an examination of complicated and long accounts, that the state is possessed of no knowledge as to such accounts and the amounts due as such license fees, and that knowledge and information relating thereto, as well as all records, books, and vouchers pertaining thereto, are solely within the defendant’s possession. It is also alleged that under the law imposing this liability defendant was required to keep such accounts and to make discovery to the state. These features of the case have been recognized as sufficient to warrant the exercise of equitable jurisdiction in such causes. There can be no ground for dispute but that the accounts involved will of necessity be long, intricate, and complicated from the very nature of the defendant’s business transactions on which the demands are predicated. The relationship of the state and the defendant respecting these obligations is such that there is cast upon defendant the duty of keeping a correct account of its gross earnings to enable the state to ascertain the extent of its claim, and from this flows the duty of rendering to the state a true and correct report of these transactions. These circumstances of necessity create a relationship in which the defendant has the duty of protecting the rights of the state issuing out of the transaction by keeping a true and correct record of its business affairs respecting them and by rendering account of its performance of this obligation. It is also obvious that knowledge concerning these transactions is exclusively in defendant’s possession. Mr. Pomeroy, in speaking of the concurrent jurisdiction in law and equity over causes, says:

“The most important, comprehensive, and multiform remedy of the concurrent jurisdiction which results in pecuniary recoveries is that of accounting. The variety of its uses and possible applications is practically unlimited. It can be adapted to all circumstances and relations in which an account is necessary for tbe settlement of claims and liabilities, and for tbe doing full justice to tbe litigant parties.” 1 Pom. Eq. Jur. (3d ed.) § 186.

Besides plaintiff’s right to a discovery incident to tbe transactions involved, it is obvious that, by reason of tbe com-t plexity and length of tbe accounts, tbe remedy in equity is more appropriate, adequate, and complete than that in law. These considerations furnish a sufficient and substantial basis for tbe exercise of tbe equitable jurisdiction of tbe court upon tbe facts alleged in tbe complaint. 1 Pom. Eq. Jur. (3d ed.) §§ 139, 140, 223, 225. Tbe case of Schwickerath v. Lohen, 48 Wis. 599, 4 N. W. 805, followed this rule and declared:

“Whether tbe accounts between tbe parties are mutual or not, where a discovery is a necessary part of tbe accounting, as in this case, tbe jurisdiction of a court of equity is unquestionable.”

See, also, North Side L. & B. Soc. v. Nakielski, 127 Wis. 539, 106 N. W. 1097; Lessel v. Zillmer, 105 Wis. 334, 81 N. W. 403; Chaffee v. Conway, 125 Wis. 77, 103 N. W. 269; Somervaill v. McDermott, 116 Wis. 504, 93 N. W. 553; 6 Pom. Eq. Jur. (3d ed.) § 930; 16 Cyc. (Equity, 4, a) 41; 1 Cyc. (Accounts, d, e) 420, 421.

We deem tbe action properly within tbe equitable jurisdiction of tbe court, and find that tbe complaint alleges facts sufficient to constitute causes of action in equity for an accounting.

Tbe defendant has demurred to each cause of action in tbe complaint upon tbe ground that this action was not commenced within tbe time limited by law. This presents tbe inquiry: Are any causes of action alleged in tbe complaint barred by tbe statutes of limitation ?

By subd. 3, 4, sec. 4222, Stats. (1898), it is provided that actions must be brought within six years after tbe cause of action accrued, when tbe cause of action arises:

“(3)-. . . upon any other contract, obligation or liability, express or implied, except those mentioned in tbe last two preceding sections.

“ (1) . . . upon a liability created by statute, other than a penalty or forfeiture, when a different limitation is not prescribed by law.”

Sec. 4229, prior to its amendment by ch. 1, Laws of 1905, enacted that “the limitations prescribed in this chapter shall apply to actions brought in the name of the state or for its benefit in the same manner as to actions by private parties,” 'excepting rights by adverse possession, etc., of real property. Oh. 1, Laws of 1905, amends this section, and prescribes that an action accruing to the state to recover a penalty or forfeiture, and actions for forfeitures begun under sec. 1214, Stats. (1898), must be commenced within six years after the cause of action accrued, and “any other action in favor of the state, whether created by statute or otherwise, must be commenced within ten years after the cause of action therefor has accrued.”

The language of the statute prescribing that the periods of limitation for bringing action after the cause of action has accrued shall apply to the state is plain in its meaning and clear in its terms. There is no question but that in its ordinary signification it is made to apply in the same manner as between private parties. This court has on former occasions considered the statute and so construed the legislative purpose. In Coleman v. Peshtigo Co. 47 Wis. 180, 2 N. W. 111, an action to recover damages for trespasses upon land while it belonged to the state was brought by the patentee, who claimed to have succeeded to the rights of the state to maintain the action. It was there contended that the statute did not run against this demand while the state owned the land, but the court held in construing the limitation statutes that:

“The language ... is so explicit that it is difficult of comprehension how the exception contended for by counsel [that it did not include such demands in favor of the state] could have been intended by the legislature, or could be made to ■exist by any construction of the language used, however technical or strict.”

In the case of Scheuber v. Held, 47 Wis. 340, 2 N. W. 779, the effect and scope of these statutes was considered as applied to prescriptive rights in lands owned by the state to flow lands for a milldam. It was there declared that the statute providing that “civil actions can only he commenced within the periods prescribed in this chapter” comprehended all civil actions, including the one under consideration, and that “there is no reason why the presumption of a grant to the adverse claimant, from a delay to bring such action for over twenty years, should not prevail against the state as against other parties.”

It is said that the construction of the statutes as applied in these cases can he of no force because the instant case is one for the collection of a tax, and therefore not within the intent of the statute, even should it be comprehended in its terms in their general sense. True, this is a civil action to enforce a demand which does not arise as ordinary contract, obligations issuing out of a mere voluntary personal transaction, yet in its essential nature and characteristics it is a demand or obligation enforceable as other state claims by an action in the name of the state or for its benefit. The demand is one which is clearly embraced in the classes covered by the limitation statute providing that an action must be brought within six years after a right of action accrues “upon a liability created by statute, other than a penalty or forfeiture.” The demand sought to be enforced here under the-claim of the state is manifestly a liability created by statute, for the state asserts that the obligation is one imposed under the taxing power of the state as an incident to the grant of the privilege of operating its railroad in Wisconsin, conferred by the state on defendant. Under these conditions the claim is. obviously created by statute in the sense the legislature employed the words of this statute, and comes plainly within its terms.

We find that a like statute has been applied to a demand for taxes in other jurisdictions, "wherein a construction like the one pressed upon us hy the state was urged and held unwarranted in view of the plain meaning and the evident legislative intent as expressed in the phraseology that the limitation should “apply to actions brought in the name of the state or for its benefit, in the same manner as to actions hy private parties.” In the case of Redwood Co. v. W. & St. P. L. Co. 40 Minn. 512, 42 N. W. 473, the court construed this statute in a proceeding to obtain a judgment for unpaid taxes. The court said: “That a tax is a liability created by statute we think admits of no doubt, either upon principle or authority ;” and held the proceeding to enforce the tax claim, “within the meaning of the statute, 'an action upon a liability created by statute,’ and that it was barred as to all taxes for the enforcement of which such proceedings might have been instituted more than six years before,” when properly assessed. In San Francisco v. Jones, 20 Fed. 188, the same clause in a California statute was held to bar the state from enforcing a tax after the period of limitation had expired. In State v. Y. J. S. M. Co. 14 Nev. 220, this same statute was considered as to its application in an- action by the state for the collection of delinquent taxes, and upon an extended review of the authorities and reason bearing on the question the court held that such a statute “embraces every civil action, both legal and equitable,- whether brought by an individual or the state. . . . Such is the plain reading of the statute and the evident intention of the legislature.” Cases cited.

We find no .justifiable ground for holding that an action for the collection of taxes is not within the operation of the; limitation statute, and that the state is not barred from collecting the taxes imposed by sec. 1213, Stats. (1898), after the expiration of the period of limitation.. ' This also is the legislative interpretation of the statute as is disclosed by ch. 1, Laws of 1905, amending it and specifically applying a limitation of ten years to actions in favor of the state, whether created by statute or otherwise, except those for the recovery of forfeitures and penalties, and actions and proceedings by the attorney general for the forfeiture of rights, privileges, and franchises pertaining to railroads, to which a shorter period is to apply. It is evident from the context of this act that the legislature deemed the former statute, so amended, applicable to the classes enumerated in the amended act, which plainly embraces actions for unpaid portions of license fees such as the state seeks to recover in this .ease.

It is urged that, if the limitation statute apply to the al-3eged causes of action, then defendant will not be permitted ’to interpose the statute because it fraudulently concealed from plaintiff until the year 1903 the existence of these ■causes of action. This is urged upon the ground that it would be unconscionable to allow defendant to rely on the statute under such circumstances. This claim presupposes that plaintiff was kept in ignorance of its rights through the contrivance and concealment of the defendant. We have, however, ho such situation presented here. It is admitted that the defendant made payments under the liability imposed, and the only claim is that it fraudulently omitted to make and render a true and correct report of its annual gross earnings, on which the liability is based; There is nothing to show but that the state had full opportunity to make an investigation of the business so as to ascertain whether such reports were correct. Eurthermore, the state railroad commissioner was called upon to examine such reports in respect to their sufficiency before the annual licenses were granted. The state could not be misled as to its right to enforce any such demand and nothing was done to prevent it from ascertaining everything as to the true state of affairs respecting these claims which might have been ascertained by the exercise of reasonable diligence. We find no justification for this claim of the state in the facts alleged.

Were this claim of the plaintiff well founded in fact, still no exemption from the operation of the statute would exist under the provisions of the statutes of limitation. The limitations prescribed have been held applicable to all actions, and the presence of fraud in no instance postpones the running of the statute from the time the cause of action accrued, save the specified exception-in subd. 7, sec. 4222, Stats. (1898), for relief on the ground of fraud in cases which before February 28, 1857, were cognizable solely by the courts of chancery. As we have heretofore indicated, this cause is of that class wherein a liability which is legal in its nature and has been created by statute is sought to be enforced, and would come within the jurisdiction of law but for the fact that the remedy therein does not afford as complete, sufficient, and adequate a remedy as that afforded by the equitable action for an accounting and discovery. It is therefore not within the exception of subd. 7 of the limitation statute, and hence the statute commenced to run against the cause of action from the time the right of action accrued, which was at the time the annual instalments were due in February and August of each year. Recent decisions of this court plainly show that there is no exception to this statute except the one it specifies. Jacobs v. Frederick, 81 Wis. 254, 51 N. W. 320; Pietsch v. Milbrath, 123 Wis. 647, 102 N. W. 342; Boyd v. Mut. Fire Asso. 116 Wis. 135, 90 N. W. 1086, 94 N. W. 171; Hoffmann v. Milwaukee E. R. & L. Co. 127 Wis. 76, 106 N. W. 808; Mason v. Henry, 152 N. Y. 529, 46 N. E. 837.

Upon the facts alleged in the complaint it is clear that the state is barred from enforcing any of the alleged claims after the expiration of six years from the time they became due, pursuant to sees. 1211, 1212, 1213, Stats. (1898), until the time was extended by ch. 1, Laws of 1905 (sec. 4229, Stats.: Supp. 1906), which was published February 4, 1905. At this time all causes of action which had accrued six years before were barred, and were as effectually extinguished as if they had been satisfied by actual payment. Under such circumstances tbe right so created constitutes property, and the state cannot deprive the party of it by legislative action which enlarges the period of limitation or by creating a new remedy for the collection of such claims. The authorities of this court on this proposition are numerous and clearly settle the law for this state. Eingartner v. Ill. S. Co. 103 Wis. 373, 79 N. W. 433; Pereles v. Leiser, 119 Wis. 347, 96 N. W. 799; Knox v. Cleveland, 13 Wis. 245. These considerations lead to the conclusion that the complaint states good causes of action in equity for any unpaid portions of the license fees that accrued subsequent to February 4, 1899, and that the demurrer should have been sustained as- to all alleged causes- of action- which accrued prior to this date.

Treating the complaint as one in equity for an accounting disposes of the question of the right of the defendant to a trial by jury, as well as. to the validity of eh. 328, Laws of 1905, except so far as it provides in sec. 3 thereof that defendant in such, an action is required to make complete discovery in its answer under oath respecting the subject of the action, for the reason that the provisions of this act require no proceeding or pleading and grant- no relief to which either party was not entitled in equity before its passage except the discovery to be made in the answer. Aside from this provision it is declaratory only of existing rights and therefore is not repugnant to any of the constitutional provisions claimed by the defendant.

Sec. 3 imposes the duty .on defendant to set forth in its answer “a full, true and complete discovery under oath and a true and accurate account of all moneys received by it in the operation of its railroad” for the period covered by the complaint, without deduction of any of the items specified. This imposes an- obligation on defendant- in this class of actions not required in any other suits. The statute accomplishes what has usually been done by a bill of discovery.. The proceeding by bill of discovery has, however, been absolutely abrogated in this state by sec. 4096, Stats. (1898). Kelly v. C. & N. W. R. Co. 60 Wis. 480, 19 R. W. 521; Whereatt v. Ellis, 65 Wis. 639, 27 N. W. 630, 28 N. W. 333; Frawley v. Cosgrove, 83 Wis. 441, 53 N. W. 689. This change in procedure has not, however, abrogated the right of discovery, but by examination of the parties in the manner provided by sec. 4096, Stats. (1898), has substituted another and totally different procedure. The requirements of sec. 3, ch. 328, Laws of 1905, provide an appropriate proceeding for the collection of a tax. The regulation of the procedure for collecting taxes is well recognized as being within the legislative power. In St. Louis v. Ferry Co. 11 Wall. 423, it is declared:

“It is for the legislature to decide what persons' and property shall be reached by the exercise of this function [the taxing power] and in what proportions and by what processes and instrumentalities taxes shall be assessed and collected.” See, also, Blackwell, Tax Titles, § 75.

It is also well established' that the state may prescribe any appropriate remedy for this purpose which does not deprive a party of notice and reasonable opportunity for compliance, and that it may employ the usual judicial processes and proceedings, or employ them in a modified form, to regulate and enforce payment of the public revenue. This power is incident to the exercise of the taxing power. State v. Georgia Co. 112 N. C. 34, 17 S. E. 10; 1 Cooley, Taxation (3d ed.) 15-18; 21 Ency. Pl. & Pr. (Taxation) 378, 380, 381, 384.

It is furthermore asserted that the legislation is objectionable because it discriminates between members of a class. For the purposes of taxation, railroad companies throughout the history of their existence in this state have been treated as a separate class, and in the recent case of Chicago & N. W. R. Co. v. State, 128 Wis. 553, 108 N. W. 557, it was held that it is within the legislative discretion to place railway corporations in a class by themselves for the purposes of taxation. In this power to so classify them inheres the authority to provide divers methods of taxation and to provide special instrumentalities and appropriate proceedings to accomplish this purpose. We are of the opinion that the provision of sec. 3, ch. 328, Laws of 1905, requiring defendant to make discovery under oath in its answer to the complaint, was properly within the power of the state as an incident to providing a remedy for the collection of taxes, and that for the purposes of imposing and collecting taxes the state could place railroads in a class by themselves.

We are led to the conclusion that the complaint must he sustained as good and sufficient in equity for an accounting and discovery as to the causes of action which accrued subsequent to February 4, 1899, and that the additional requirements of see. 3, ch. 328, Laws of 1905, are properly imposed on defendants in an action for the collection of any unpaid portion of the license tax. The demurrer should have been sustained to all causes of action set out in the complaint which were barred by the statute of limitation and overruled as to all causes of action not so barred.

The order overruling the demurrer to the complaint must therefore be reversed, and the cause-' remanded with directions to enter an order in accordance with this opinion.

By the Court. — It is so ordered.