Yates v. City of Milwaukee

Pinney, J.

In the case of Hale v. Kenosha, 29 Wis. 605, in considering the distinction between taxes and assessments, it was said that “ assessments, as distinguished from other kinds of taxation, are those special and local, impositions upon property in. the immediate vicinity of municipal iift-provements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvements, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure; ” and the language of Beonsoet, J., in Sharp v. Speir, 4 Hill, 76, that “ our laws make a plain distinction between taxes, which are' burdens or charges imposed upon persons or property to raise money for publio purposes, and assessments for city or village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement,” after citing the previous cases in this state on the subject, was declared to be “ peculiarly applicable to our system of taxation and assessment.” As such assessments áre laid with reference to the special benefit which the owner of the property is supposed to have derived from the improvement, it is manifestly just that, to the extent which his property has been benefited, it should be charged with the cost of the improvement, and it would be inequitable to exempt it from such an assessment. No presumption, therefore, of an intention to exempt such property from assessment can arise from the use of language which does not clearly show that the.legislature intended such exemption and to charge the special benefit thus derived by a private owner upon the funds raised by general taxation. While assessments are said, in strictness, to be made under the taxing power, they are “ so far separated and distinguished from general taxation as to have obtained a distinct name, and that name, assessments. As such, they have been known and described for a number of years in the older states, in their contracts, laws, and constitutions. A clear distinction, between them and other taxation was established.” Weeks v. Milwaukee, 10 Wis. 242, 260. A familiar illustration of the popular understanding is found in the language used in leases, and in those before us, where general taxes, when so intended, are named simply as “taxes;” and when assessments áre intended the words “ special taxes ” or “ assessments ” are employed to express such intent.

Legislative exemptions of property from taxation are to be strictly construed. This rule is universal. Cooley, Taxation (1st ed.), 54; Weston v. Shawano Co. 44 Wis. 256, ubi supra. In pursuance of this principle, it has been generally held that a law exempting property from “ taxation ” does not exempt it from assessment for street improvements; that the terms “ taxes ” and “ assessments ” are not synonymous, and that the latter is not included in the former. Lima v. Lima Cemetery Asso. 5 Am. & Eng. Corp. Cas. 541, and note, where the cases on the subject are collected; Winona & St. P. R. Co. v. Watertown, 1 S. Dak. 46; Sioux City v. Independent Sch. List. of Sioux City, 55 Iowa, 150; 25 Am. & Eng. Ency. of Law, 160, and numerous cases cited in note 2; Worcester Agr. Soc. v. Worcester, 116 Mass. 189, 191; Bridgeport v. N. Y. & N. H. R. Co. 36 Conn. 255; McLean Co. v. Bloomington, 106 Ill. 209; Adams Co. v. Quincy, 130 Ill. 566; Zable v. Louisville B. O. Home, 92 Ky. 89; State v. Mills, 34 N. J. Law, 177; Buffalo City Cemetery v. Buffalo, 46 N. Y. 506; Roosevelt Hospital v. New York, 84 N. Y. 108; Ill. Cent. R. Co. v. Decatur, 147 U. S. 190. The surrender of the right to make and levy assessments cannot be implied. All presumptions are against it, and all who insist on such exemption, by which private property is to be improved at public expense, must come prepared to establish it in clear and unanswerable terms. Endlich, Interp. Stat. § 356; Suth. Stat. Const. § 364; Tucker v. Ferguson, 22 Wall. 575; West Wis. R. Co. v. Trempealeau Co. 93 U. S. 598; People ex rel. Twenty-third St. R. Co. v. Commissioners off Taxes, 95 N. Y. 554.

We must hold, therefore, that the provision of ch. 450, Laws of 1889, exempting the premises in question from “ taxation,” cannot be construed or extended so as to operate as an exemption of said premises from special taxes or assessments so long as the same shall be leased, used, or occupied by the Wisconsin State Agricultural Society for the purpose of holding the annual state fair; that when brought within the corporate limits of the city they became at once subject to the provision of the city charter (sec. 12, subch. 20, ch. 184, Laws of 1874), which declares that “real estate exempt from taxation by the laws of the state shall be subject to special taxes as other real estate under this act.”

Under the various provisions for selling and conveying lands charged with assessments, for nonpayment, it cannot well be doubted but that, within the meaniug of these acts, an assessment may be said to be a tax, as there is no other method by which collection can be enforced save through the agency of the laws for the sale and conveyance of lands for the nonpayment of general taxes; and for this reason, and to that purpose, an assessment was regarded as a tax, as held in Dalrymple v. Milwaukee, 53 Wis. 187; Sheboygan Co. v. Sheboygan, 54 Wis. 421. These cases fall far short of holding that an exemption of property from “ taxation ” is an exemption of it from assessment or special taxation for local improvements.

The amendatory act (ch. 82. Laws of 1891) did not become operative until March 31st of that year. The assessment had been ordered, and the improvement contracted for, and the work constructed during the previous year, and the usual certificate was issued to Brand, the contractor, January 8, 1891. He thereby acquired vested rights by virtue of his contract and the performance of the same, and was entitled to have the assessment collected by and through the ordinary instrumentalities. This was an inseparable incident of his contract, attendant upon its performance, without which it would probably have been of little or no value, and any legislation to deprive him of his right to enforce the payment of the assessment against the land would doubtless be an impairment of his contract forbidden by the constitution. Robinson v. Howe, 13 Wis. 341, 345. Besides, upon the face of this act, it is apparent that it was not intended to have a retrospective operation, but was enacted only as a rule for future cases.

The proper construction and effect of the acts under consideration depend upon the fair meaning of the language used, and not upon the fact that the legislature in previous years had bestowed many favors upon the State Agricultural Society, nor upon its financial necessities or the character or extent of its pecuniary obligations to the owner of the driving park to pay what is termed in the lease “ a material • part of the rent ” of these premise's by paying the general and special taxes or assessments charged thereon while holding the same under the lease.

It does not clearly appea.r whether the two small assessments for street sprinkling were charged upon the property before or after ch. 82, Laws of 1891, took effect; but if afterwards, the plaintiffs were not entitled to enjoin the execution of a tax deed upon the certificate of sale embracing the three assessments, without tendering the amount equitably and actually due thereon for the assessment for the sewer. Hart v. Smith, 44 Wis. 213, 215.

For these reasons, we hold that the order refusing to vacate the injunctional order was erroneous.

By the Court.— The order of the circuit court refusing to vacate the injunctional order is reversed, and the cause is remanded for further proceedings according to law.