City of Janesville v. Markoe , 18 Wis. 350 ( 1864 )

By the Court,

Cole, J.

This case presents another of those perplexing questions growing out of tbe recent .revision, and as to bow far the repealing chapter 191 abrogates all provisions in city charters inconsistent with tbe general laws re-enacted. By special provisions in tbe charter of the city of Janesville, approved March 25, 1858, the circuit court is authorized, on the filing of the report of tbe city treasurer with the clerk of said court, together with certain affidavits there named, to enter judgments against lands for delinquent taxes and charges ; and the treasurer sells tbe lands against which these judgments are rendered, on an order of court, in very much the same manner as a sheriff sells lands on an execution. When tbe city treasurer, proceeding under these provisions of tbe charter, applied to tbe circuit court for judgment against certain lots and parcels of land belonging to tbe respondent, for tbe amount of unpaid taxes levied on them by tbe city authorities for city purposes for tbe year 1863, tbe circuit court denied tbe application, on tbe ground that there was no existing statute authorizing the proceeding. In other words, the court held that these special provisions in the charter for enforcing the collection of delinquent taxes, had been superseded or abrogated by the Revised Statutes. By the general system adopted by the Revised Statutes, delinquent lands are reported by the town treasurers to'the county authorities for sale. Should that have been done in this case by the city treasurer ? Or are the provisions of the charter upon this subject still in force ?

In the case of the Supervisors of Walworth County v. The Village of Whitewater, 17 Wis., 193, quite an analogous point was presented. The ’question in that case was, how far the provisions of the village charter upon the subject of granting licenses for the sale of ardent spirits, and the disposition of the money arising therefrom, had been superseded or abrogated by the re-enactment of the excise laws and the language used in the various sections of the repealing chapter. And we there held that, while the language in the last clause of section 1, chap. 191, and section 9, was sufficiently comprehensive to include any repugnant provision of law wherever found, yet we would not assume that the legislature intended by it to repeal all provisions of the various city and village charters in the state, which might be in conflict with the general statutes. We thought the language must have some limitation, and be held to apply to those repdgnant provisions in that character of laws which the legislature was revising, found in the various session laws published prior to 1858. And this intention was 'the more manifest from the fact that the legislature deemed it necessary to adopt section 14, which expressly declared that all laws contained in the revision of the statutes should apply to and be in force and effect in each and every city in the state, any provision in the charter of any such city to the contrary notwithstanding ; a provision of law entirely useless and unnecessary unless the view we had taken of the former sections of this chapter was correct. This construction of those sections likewise derives almost irresistible force from the subsequent amendment of section 14 so as to make it read that “ all laws contained in this revision of the statutes shall apply to and be in force and effect in each and every city in this state, so far as the same are applicable, and not inconsistent with the charter of any such city” (chap. 66, Laws of 1859, p. 73); thus showing that it was the understanding of the legislature that it was by virtue of section 14 alone that the revised statutes were made to apply to cities, and not because all repugnant provisions in their charters had been repealed by the language previously used. We are therefore inclined to the opinion that the special provisions in the charter of the city of Janesville, in respect to the collection of delinquent taxes by means of a judgment and order of the court, are still in force.

At first glance this result might seem inconsistent with the decision in Kellogg v. The City of Oshkosh, 14 Wis., 623; but a moment’s examination will show that it is not. In the case of Kellogg, one question presented was, whether the provisions of the city charter of Oshkosh, in regard to the assessment and equalization of taxes, had been superseded by chap. 115, Laws of 1858. And it was held that they had been. That this conclusion is correct, is very clear. In the first place, chap. 115, in regard to the assessment and equalization of taxes, is general, and is in terms made expressly applicable to cities. See section 20 of the act, R. S. 1858, page 245. Further, the last section (R. S., p. 248, sec. 31) repeals-all acts or parts of acts in conflict with its provisions. Besides, the taxes, the validity of which was questioned in this case, were assessed and equalized in 1858, and before the revision with the repealing chapter took effect. Sec. 1, chap. 191, R. S. These circumstances materially distinguish the present case, from that of Kellogg v. The City of Oshkosh, and of course render that decision entirely inapplicable. There is no general statute in respect to the collection of delinquent taxes by sale of the lands, which, by its terms, is made applicable to cities, as was the case in chap. 115. It is true, there is a general system provided in cbap. 18, R. S., for tbe collection of delinquent taxes by tbe sale of tbe lands upon wbicb they are assessed. But it is declared that the provisions of that chapter relative to towns shall be construed as applying to cities or wards, where the same are applicable, unless otherwise provided. Sec. 162, p. 234. Where it is otherwise provided in city charters, of course it is not intended that the provisions of that chapter relative to towns should apply.

Upon the other branch of the case we would say that we consider the description of the property by lots and blocks on tho assessment roll as sufficient. Assuming that there never had been a legal, valid plat of the lands by the owner, yet the plat which was made would be sufficient for the purpose of assessment and taxation. The lands could at once be described and identified by this plat, and thus the property sold be readily ascertained. It is said that it is a matter of importance to the owner whether his property is taxed as farming lands or city lots. We suppose it the duty of the assessor to list the lands at their true value, regardless of the purpose for which they were used. He could not lawfully make any discrimination between those used for farming purposes and those appropriated for building lots. Knowlton v. Supervisors of Rock Co., 9 Wis., 410. If the property had been listed for taxation a number of years by lots and blocks, the assessor was authorized in describing them upon the tax roll in this manner, whether there was any irregularity in making and executing the original plat or not.

The order of the circuit court is reversed, and the cause remanded with directions to render judgment against the lands of respondent according to the provisions of the city charter. ■