Union Cemetery v. City of Milwaukee

Currie, J.

(dissenting). I respectfully dissent on the ground that sec. 75.65, Stats. 1951 (now renumbered sec. 66.64), in effect when the instant special assessments were initiated, has repealed the plaintiff’s prior exemption from special assessments. Such statute reads as follows:

“The property of every county, city, village, town, school district, sewerage district or commission, sanitary or water district or commission, or any public board or commission within this state, and of every corporation, company, or individual operating any railroad or street railway, telegraph, telephone, electric light or power system, or doing any of the business mentioned in chapter 76, and of every other corporation or company whatever, shall be in all respects subject to all special assessments for local improvements and certificates and improvement bonds therefor may be issued and the lien thereof enforced against such property in the same manner and to the same extent as the property of individuals. . . .” (Italics supplied.)

The majority opinion construes the italicized words as restricted to mean only other corporations of the same class as those previously enumerated specifically thereby employing the canon of construction of ejusdem generis. However, such canon of statutory construction is not to be employed if it is apparent from the reading of the statute that to do so is contrary to the legislative intent. 2 Sutherland, Statutory Construction (3d ed.), p. 407, sec. 4914; 82 C. J. S., Statutes, pp. 664, 665, sec. 332; Helvering v. Stockholms Enskilda Bank (1934), 293 U. S. 84, 88, 89, 55 Sup. Ct. 50, 79 L. Ed. 211.

The words “every other” and “whatever” as applied to “other corporation or company” clearly indicate a legislative intention that the legislature did not have in mind other corporations or companies of the same class as those specifically enumerated.

There is a further exception to the canon of ejusdem generis that is applicable here. 82 C. J. S., Statutes, p. 665, sec. 332, states such exception as follows:

“The rule does not apply where its application would render meaningless the general words, as where the specific words exhaust or embrace all objects of their class, so that the general words must bear a different meaning from the specific words or be meaningless.”

All of the types of utility corporations or companies specifically enumerated are engaged in the business mentioned in ch. 76, Stats., and are covered by the statutory words “or doing any of the business mentioned in chapter 76.” Therefore, the classification was exhausted by such words and the ensuing words, “and of every other corporation or company whatever” must refer to corporations or companies different from and additional to those enumerated such as the plaintiff.

For these reasons I would affirm the judgment below.

I am authorized to state that Mr. Chief Justice MARTIN and Mr. Justice Brown join in this dissent.