Kellogg v. City of Oshkosh , 14 Wis. 623 ( 1861 )

By the Court,

Dixorr, C. J.

The plaintiff’s residence at Oshkosh at the time the taxeá were assessed, is not seriously questioned by his counsel. If it were, it is clear that the finding of the circuit judge could not in this respect be disturbed. His own testimony fully sustains it. Every man has, in law, a home or domicil. The plaintiff is an unmarried man. He says he came to Oshkosh in the spring of 1855, and remained until December, 1856 ; he voted there in the fall of 1856, and a large share of his time has since been spent there, the winter seasons being passed at different places abroad on account of his health; most of his property has been there and in that vicinity, and that has been his principal if not his only place of business, and he has never removed or gone elsewhere with the intention of remaining, nor exercised the rights or privileges of a citizen at any other place. This is clearly made bim a resident of Osbkosb. The act of voting was the highest evidence that he had changed his domicil, and made Oshkosh his home in intent as well as in fact. In some cases it is regarded as conclusive on the subject. Shelton vs. Tiffin, 6 How., 185.

The assessment and equalization of the taxes were regular and valid. The assessor testifies that he handed to the plaintiff, at his office, on the first or second day of June, 1858, the notice required by section 11, chapter 115, Laws of 1858, (Revised Statutes, p. 243), which he refused to accept because he was not a resident of the city. This was a sufficient service of the notice. The assessment for the city was made by the assessors of the several wards, each acting within his own ward; and the equalization by the mayor and the clerk, the alderman of each ward serving as a member of the county board of supervisors, and the assessors sitting as a board of equalizers, according to the requirements of chapter 115. This was correct. The provisions of that chapter, being general and designed to constitute a uniform rule for all cities and towns, and being inconsistent with the special proceedings prescribed by the charter (Pr. Laws of 1856, p. 248), necessarily operated as a repeal of them. It is not pretended that one legislature can, by a provision like that contained in section 22 of chapter 11 of the charter (Pr. Laws of 1856, page 262), bind a future legislature to a particular mode of repeal. By section 31 of chapter 115 (R. S., p. 248), all acts and parts of acts superseded by or conflicting with the provisions of that act were repealed.

The certificate prescribed by section 33, chapter 15, R. S. of 1849, was not required. It was superseded by section 16 of chapter 115 (R. S., p. 244), and the assessor’s oath or affirmation therein prescribed, substituted for it.

The notice required by section 9, chap. 8 of the charter (Pr. Laws of 1856, p. 250), was properly given by the treasurer. It was competent for the common council, under section 9, chapter 3 of the charter (Pr. Laws of 1856, p. 230), to designate a newspaper published in the Herman language as the official paper of the city, provided the publication was also made in the English language. This it appears was done The legislature well understood that newspapers in foreign languages were published in nearly all our large towns and cities, and if it had been the intention to restrict the council to such as were published in the English, words to that effect would no doubt have been used. Besides there may be places where such foreign language is mostly read and spoken, and a newspaper published therein may be the most efficient and useful channel of information. It does not appear that this was the case in Oshkosh, but in view 'Of the well known facts we think it more reasonable to say that the legislature, by the general words used, intended to leave the choice of the official paper of the city, whether printed in one language or another, fully to the discretion of the, council. When once known, as it soon must be, to all of the inhabitants of the city, no real inconvenience would arise from it, whatever might be the designation. .But if the publication in the Deutsche Zeitung had been defective, it w;as clearly cured by that in the Courier,

The special proceeding instituted before Justice Colton, pursuant to, sections '81 and 82 of chapter 18 of the Revised Statutes, although entitled to no effect as an estoppel, beyond the questions into which he was authorized to inquire, was nevertheless regular, and constituted a sufficient foundation for the execution issued as provided by section 8, chapter 198, Laws of 1860. The only objection taken to that proceeding or those which were subsequently'had, is, that the treasurer had no authority to institute it after the return of his warrant The statute contains no words to that effect, nor is such a limitation fairly to be implied from its provisions. It is a remedial statute, enacted for the public good, and therefore to be liberally construed so as to suppress the mischief and advance the remedy. We are of opinion that the treasurer was authorized to make and file the affidavit, and procure the summons to be issued.

It follows from what has been said, that the judgment below must be reversed. But there is another principle upon which this case would have been attended with the same result, if the proceedings to assess, levy and collect the taxes had been never so irregular, which may be properly men-Equity will not interfere to aid tbe de- or to stay proceedings at law, for mere irregularity, or when it appears that the moneys demanded are justly and equitably due on account of taxes. It will leave him to his legal remedies. Warden vs. Supervisors of La Fayette County, [ante, p. 618]. It appears from the testimony of the plaintiff, that the amount assessed against him did not exceed, and probably fell short of, the actual value of his taxable personal property. tioned. It is this. linquent tax payer,

The judgment of the circuit court is reversed, and the cause remanded with directions that the complaint be dismissed, with costs.