Whittaker v. City of Janesville , 33 Wis. 76 ( 1873 )

The following opinion was filed at the January term, 1873.

Dixon, C. J.

It is contended for the plaintiff that the act, chapter 48, Supplement to Private and Local Laws of 1862, entitled “an act to provide for the assessment of taxes "in the city of Janesville for the years 1854, 1855, 1856 and 1857,” is void, , because the vote on its passage was not taken by yeas and nays, and because there were not three-fifths of the members of each house present at the time of its passage, according to the provisions of section 8, art. VIII of the constitution. That section requires the vote to be so taken, and declares that three-fifth of all the members elected to each house shall in all cases be necessary to constitute a quorum therein, “ on the passage, in either house of the legislature, of any law which imposes customs or renews a tax, or creates .a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state.”

It has been decided by this court that the tax spoken of in this section of the constitution is a state tax, or one for the support of the government of the state and to supply its treasury with funds, as distinguished from a local tax or a tax for any other purpose. Watertown v. Cady, 20 Wis., 501; Bushnell v. Beloit, 10 Wis., 228. But it is said that the act under consideration imposed, continued or renewed, among others, the state taxes for the years in question upon the City of Janesville, or those parts of those taxes which, for those years respectively, were apportioned against the city or the taxable property in it, as its share, or the share of its citizens, of the necessary public burden in defraying the expenses of the state government for the year when each apportionment was made. The collection of all or of a large portion of the taxes for those years had failed within the city, by reason of a constitutional defect in the charter providing for the local assessment, and which violated the rule of uniformity prescribed by the constitution. Knowlton v. Supervisors of Rock County, 9 Wis., 410. The act in question was passed to remedy the defect, and its validity on general constitutional principles was affirmed in the case of Tallman v. The City of Janesville, 17 Wis., 71. See also Cross v. Milwaukee, 19 Wis., 509.

But now comes this new objection, which must also be held unavailing. The act is not a law which imposes, continues or renews a tax, in the sense of the constitution. Those words refer to a general state tax imposed, continued or renewed. The taxes in question were not imposed, continued or renewed by the act. They were imposed, and lawfully so, upon the city, or the taxable property in it, at the several times when the state taxes were levied for the respective years named in the act; and, being so imposed, they continued a lawful public burden upon the city, or the taxable property in it, until they were paid, and required no legislative action renewing them in order to enforce their collection. The act in question did not renew them, but merely provided the necessary machinery or means in the law for ascertaining the just and proper proportion of them which each property owner in the city should pay, and for compelling such payment. When it is viewed in this light, which we regard the only correct one, the objection of counsel falls to the ground.

Another objection, also of a constitutional kind, is, that section 27 of the act is invalid because it violates the provisions of section 9, art. I of the constitution. The provisions of said section 27 are set forth by the reporter, supra. Article 9 of the declaration of rights is that which declares that “ every person is entitled to a certain remedy in the laws for all injuries or wrongs which he may receive in his person, property or character; he ought to obtain justice freely and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.”

The position assumed in support of this objection is, that the act requires the payment of all taxes, whether they are such as are inherently unjust and inequitable, or are such only as have been merely irregularly assessed, and against which, or the sum demanded of him, the taxpayer can make no opposition upon equitable grounds, but must stand on those which are directly legal and technical in their nature. We do not think the act is susceptible of the construction attempted to be put upon it by counsel, or that it was intended to operate so as to deny the remedy unless the taxes are paid, where they are inherently vicious and wrong and against the equitable rights of the property owner of whom they are claimed. So construed, the act would undoubtedly be obnoxious to the constitutional objection raised by counsel. But such is not the construction of the act, the aim of which evidently was to cut off the remedy when sought on grounds of irregularity merely. This appears from the words, “ whether such taxes have been regularly assessed or not: ” and again from the provision requiring the action to be dismissed when it is shown that the amount paid is not the full amount of taxes justly chargeable upon such lands.” The question presented differs not, therefore, from that involved in Wakeley v. Mohr, 15 Wis., 609, and Wakeley v. Nicholas, 16 Wis., 588; except it may be that this act is more plain, or less difficult of exposition upon the point in question, than the act there under consideration.

It follows that this action should have been dismissed for tbe omission of the plaintiff tó pay the taxes assessed upon his several lots and parcels of land described in the complaint, wherever such assessments were not shown to have been void on the merits, or unjust and wrong in principle, upon particular lots and parcels. An examination of the pleadings, findings and judgment in the court below fails to establish that such was the character of the taxes assessed upon all the lots. A proper construction of the statute we have just been considering, undoubtedly requires the action to be dismissed whenever relief is sought with respect to several parcels of land, and it appears that the taxes assessed upon one or more are such as ought to have been paid by the plaintiff but have not been. The owner of fifty separate lots cannot take advantage of an unjust and inequitable assessment of taxes upon ten of them, for the purpose of obtaining an injunction restraining the collection of taxes against which no such objection exists, assessed upon the other forty lots. If it be found, on the trial, that the taxes upon any of the lots are such as should have been paid but have not, the action must be dismissed. This would be the rule under the statute, though a different one might prevail in equity" without it.

Many of the objections taken to the taxes are purely legal and technical, and such as afford no ground of relief in equity. Of this kind (among numerous other appropriations similarly made and to which the same objections are taken), is the objection that the common council did not vote by yeas and nays in the appropriation of moneys to purchase ground for an engine house, and for the purchase of a fire engine ; also those to the form and sufficiency of the notices, the omission of the ($) dollar sign, etc. ; and likewise that to the unlawful addition of fifty cents to the amount of taxes set opposite each lot. The illegal excess, being known and separable from the sum justly due, constitutes no excuse for the nonpayment of the latter, in a court of equity; and the objections to the former are such as go merely to the form of the proceedings, and do not affect or involve the substantial justice or equity of the appropriations themselves.

The finding “that in the tax lists, more than one lot or parcel of land were valued together, although at the time of such valuation they were not owned by the same person, or occupied as one parcel,” contrary to the requirements of the^ first section of the act, would, if it extended to all the lots, entitle the plaintiff to an injunction, and to maintain his action, notwithstanding the nonpayment of any portion or all of the taxes. This is well settled. 20 Wis., 305 ; id., 228; 25 Wis., 490 ; id., 496. . But the finding specifies but seven lots out of a much larger number described in the complaint, which were so assessed.

The finding that the state, county and city taxes, upon all the premises for the year 1854, were paid by or on behalf of the plaintiff, cannot affect the validity of the taxes reassessed for the subsequent years, or the amounts of such taxes. It has no tendency to show that such taxes were contrary to right and justice, or ought not to have been paid by the plaintiff

The point that the collection of the taxes should now be perpetually restrained by decree, because the plaintiff escaped the payment of them at the time payment should have been made, either through the indulgence of the collector or by his omission to seize and sell the personal property of the plaintiff in satisfaction, however it might be in a suit at law, is certainly an unexpected one in equity. The delinquency of the officer cannot excuse that of the plaintiff, nor dispense with the rule that he who asks equity must do equity; and we merely remark respecting the point, that in our judgment the powers of the court of chancery cannot be called into exercise upon any such ground.

By the Court. — The judgment is reversed, and the cause remanded with direction to dismiss the complaint.

LyoN, J., did not sit in tbis case, baying presided at the trial in the circuit court.

A motion for a rehearing was denied at the June term, 1873.