Chicago, Milwaukee & St. Paul Railway Co. v. Board of Supervisors , 48 Wis. 666 ( 1880 )

Lyoh, J.

In the action brought by the present plaintiff againt the defendant board of supervisors and others, to restrain the collection of taxes assessed in 1868 and 1869 upon the property known as the Dousman House (being the same property affected by this action), the controlling finding of fact was as follows: “ Fourth. That in the Dousman House, the front rooms thereof in the lower story are used as an office and ladies’ sitting room; that the dining room is on the same story; that there is a saloon and billiard room in the basement; that the two upper stories are used for a parlor and sleeping rooms; that said Dousman House is occupied by one J. E. "Williams; that said Williams pays no rent for said building; that most of the travelers on the said road eat their meals at said Dousman House; that all travelers and guests 'are accommodated at the Dousman House as at other hotels; that citizens have been boarding at the house for the last three or four years.”

The case reached this court, and is reported in 29 Wis., 116. The court was of the opinion that the’ evidence sustained the above finding, and established the fact that, notwithstanding the house was used, in certain specified particulars, for the accommodation of travelers on the plaintiff’s railway, it was “open and kept and used for the accommodation of all guests and travelers, whether they are such as arrive and depart by railway carriage over the company’s road, by boats navigating the Mississippi river, or by any other mode of public or private conveyance or travel. It is a public house or inn, alike open, and so kept and intended to be, for the entertainment and lodging of all who may apply, and in nowise differing from any other establishment of the kind, except in the particulars above stated.” The judgment of the circuit court dismissing the complaint was accordingly affirmed, on the ground that the house was kept as a hotel for the accommodation of the whole public, and not distinctively for the accommodation of travelers by the railway of the plaintiff, although incidentally such travelers were accommodated thereat.

In the case of The Mil. & St. P. R'y Co. v. The City of Milwaukee, 31 Wis., 271, we had occasion to consider further the statute exempting certain property of railway companies from local taxation, and to explain the decision in the case first above cited. This is what is there said of that case: “ In the case above cited (Railway Co. v. Supervisors, etc.), we had occasion to construe this exemption law, and we there héld that a building which was used pri/neipally as a hotel, and was kept in the manner hotels'are usually kept, for the accommodation and entertainment of all persons, whether travelers upon the railway or not, together with the outbuildings and enclosures necessary to a hotel, and the land covered thereby and included therein, were not exempt from taxation under this law, although the hotel was adjacent to the railroad track, and was owned and controlled by the company, and portions of it were used as a station house or depot for the accommodation of travelers on the railroad of the company. The decision was put upon the ground that it is not usual or necessary for railway companies to carry on a'general hotel business, and hence that the property was not •necessarily used in operating the railroad, within the meaning and intent of the statute. That case also decides that if the property is principally used for a purpose not necessary to the operating of the railroad, and if to a small extent only it be necessarily used in operating the road, it is not within the exemption of the statute.” .

This explanation was thought necessary because there is some language in the opinion which might, unexplained, convey the idea that the premises would not be exempt from local taxation unless used exolusweVy for the accommodation of travelers upon the plaintiff’s railway, and we did not intend to be so understood. The same principle was applied in that case, wherein it was held that certain freight or warehouses of the railway company were within the exemption of the statute because they were used principally for a purpose necessary to the operation of the railroad, although they were, to some extent, jn charge of agents of propeller lines, who stored in them some goods received from propellers and consigned to. parties in Milwaukee, and who collected storage charges thereon.

It was said in Railway Co. v. Supervisors, that it appeared by the testimony “ that the erection and maintenance by railway companies, at suitable places along the lines of their roads and contiguous thereto, of station houses or buildingsin which passengers may be properly and comfortably supplied and entertained with food and lodging as at hotels, is a necessity of modern railway travel;” and further, that such an establishment was necessary and proper at Prairie du Ohien. Indeed, it requires but little proof to show tlie necessity for such establishments at proper points, or that the point where a great railway line crosses the Mississippi river is one of these.

The question, the answer to which is decisive of the*case, is, Does the evidence prove that the building in question was, during the year 1873, used principally as an eating and lodging house for the accommodation of travelers upon the plaintiff’s railway? "We think this question must be answered in the affirmative. The evidence is practically undisputed, that a very large proportion of the business of the house — probably more than nine-tenths of such business — consisted in furnishing entertainment to such railway travelers, and to plaintiff ’s employees on its railway. Other persons may have been entertained there occasionally, but cases of that kind are exceptional. There is considerable testimony to the effect that commercial travelers reaching and leaving Prairie du Cliien by railroad were entertained at the house in question for one or more days while transacting their business in that vicinity. We are not prepared to say that this is objectionable, or that ’it tends to show that the house was kept as a general hotel for the accommodation of the whole public. Excluding cases of this class, and cases of persons stopping at the house as invited guests of Mr. Williams, the evidence showing that persons not travelers on the plaintiff’s railway were entertained there is very meagre. . .

It is quite apparent that, to some extent, the learned circuit judge predicated his findings upon the similarity between this case and the case in 29 Wis., 116. There are many circumstances and conditions common to the two cases. This is necessarily so. But the controlling fact found in the former case, to wit, that the Dousman House was kept principally as a hotel for the general public, and only incidentally for the entertainment of travelers upon plaintiff’s railway, is wanting here. That was the use to which the building and its appurtenances were chiefly put in 1868 and- 1869, while in 1873 it is satisfactorily proved that the same property was chiefly — almost entirely — used for the accommodation of railway travelers.

It is scarcely necessary to say that the judgment in the case in 29 Wis. cannot have the effect of an estoppel in the present case. The taxability or non-taxability of the property depends upon the manner in which it is used. One mode of user renders it taxable; another mode exempts it from local taxation; and the use may change every year. Hence, because upon a given state of facts the property was adjudged to have been taxable in 1868 and 1869, it by no means follows that it must, upon another and different state of facts, be adjudged taxable in 1873.

To avoid any misapprehension of the scope and effect of our judgment in this case, it is deemed proper to say that in' determining whether; in a given case, an establishment is a general hotel for the accommodation of the whole public, or whether it is chiefly kept for the accommodation of railway travelers, the court will not enter into- any nice mathematical calculation of the relative amount of each class of business' transacted at such establishment in order to determine its real character. If a railway company allows these establishments to be carried on in competition with other hotels for the general hotel business of the country, it does so at its peril that the property will be held taxable in the usual manner.

After the decision of the former case, several changes were made in the mode of conducting the house. Boarders, as distinguished from guests, were no longer kept. The horses of guests were no longer stabled for hire as formerly, and the name was changed from “ Dousman House ” to “ Railway House.” This change of name may not be a very material circumstance, yet it may have some significance as affecting the good-will of the “ Dousman House ” as a general hotel. Whether these changes are more or less important, the fact remains that through some means, or by force of some agencies, the establishment which in 1868 and 1869 was a general hotel for the accommodation of the whole public, and only incidentally for ■ railway travelers, became in 1873 an establishment principally for the accommodation of the latter class.

Some of the findings of the circuit judge are not altogether opposed to the view we have taken of the facts proved in the case. For example, he finds that the establishment was used and kept by Williams'“as a hotel and railway eating and lodging house for the use of travelers on the plaintiff’s road.” Also, that “ said hotel was built with the object principally to accommodate railway traveland further, that the property “ was not, at the time in question, necessarily used in operating .the plaintiff’s railroad, except as an eating and lodgi/ng house for travelers over its road.” This is equivalent to finding that it was necessary for the purpose, last mentioned.

It is true that in connection with the above findings it is found that the building was built for and used as a general hotel, but it 'is not expressly found that it was used in 1873 chiefly as a general hotel. We think the opposite fact, to wit, that it was used during the year principally for the accommodation of railway travelers, should have been found; and the existence of that fact entitled the plaintiff to the relief demanded.

By the Oourt. — The judgment is reversed, and the cause remanded, with directions to the circuit court to grant the relief demanded in the complaint.