148 Wis. 39 | Wis. | 1912
Tbe complaint alleges that plaintiff is tbe owner of tbe lots described; that they are part and parcel of its right of way; that its line of railway was at tbe time of tbe assessment operated as part and parcel of its system of rail
“The property of every county, city, village, town and school district, 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 51 of the Statutes of 1898, and of every other corporation or company whatever, shall be in all respects subject to all special assessments for local improvements in the same manner and to the same extent as the property of individuals.”
They argue that the act does not specifically prescribe the steps to be taken in making special assessments, but simply provides that the property of all corporations “shall be in all respects subject to all special assessments for local improvements in the same manner and to the same extent as the property of individuals,” and hence that the statute was not meant to stand alone, but only in connection with other statutes that point out the steps to be taken in making special assessments;
It is true the decision in Chicago, M. & St. P. R. Co. v. Milwaukee was based in part upon the fact that it could be said as a matter of law that the right of way of a railway company was not benefited by the improvement of the street on which it abuts, but the decision rested chiefly upon the ground that, in the absence of an express statute authorizing an assessment of the tracks and necessary right of way of a railway company, the assessment and sale thereof for benefits by local improvements could not be sustained, and it was held that in subd. 14, sec. 1038, R. S. 1878, exempting ^ail-road property from taxation, the clause “except that the same shall be subject to special assessments for local improvements in cities and villages,” was not a sufficiently specific declaration of legislative intent to subject it thereto, as the section was intended merely to confine the exemption to the subject of general taxation. So it will be perceived that if the court had found in the statutes a sufficiently clear declaration of legislative intent to subject railroad property to special assessments, the decision would have been otherwise. That case was decided in 1895. Subsequently the legislature enacted ch. 425, Laws of 1903 (sec. 1210&, Stats.: Supp. 1906), and
“In tbe discussion of tbe question it was said that tbe principle is established that ‘such a result cannot be effected under tbe power of taxation without express legislative authority, and that general language in such statutes will not be held to authorize such a result.’ Since tbe decision of that case, however, tbe legislature has in no uncertain terms made express provision for tbe levying of such assessments against' such property. Cb. 425, Laws of 1903, provides, among other things, that tbe property of railroad corporations ‘shall be in all respects subject to all special assessments for local improvements in tbe same manner and to tbe same extent as tbe property of individuals.’ Tbis is an express and unambiguous declaration by tbe legislature upon a subject over which it has full power, which closes tbe question.”
While tbe language was used in a case that did not from necessity involve tbe question, because tbe assessment for the sewer was also sustained under tbe exercise of tbe police power irrespective of special benefits, still it correctly expresses the purpose and power of tbe legislature in tbe enactment of cb. 425, Laws of 1903. What was said in Chicago, M. & St. P. R. Co. v. Milwaukee, supra, to tbe effect that it is clear as a matter of law that a railway company’s right of way is not benefited by tbe improvemept of tbe street upon which it abuts, must be deemed to be overruled. Such legislation is in accord with tbe result in many well considered cases, and is in harmony with tbe rule approved by tbe supreme court of tbe United States that on tbe question of benefits or no benefits tbe land shall be considered simply in its general relations and apart from its particular use. Louisville & N. R. Co. v. Barber A. P. Co. 191 U. S. 430, 25 Sup. Ct. 466; Ill. Cent. R. Co. v. Decatur, 147 U. S. 190, 13 Sup. Ct. 293;
It was decided in Weeks v. Milwaukee 10 Wis. 242, that special assessments by municipalities do not come within the rule requiring uniformity of taxation, because art. XI, sec. 3, of the constitution authorizes the "legislature to restrict the power of assessments of cities, and that the legislature is the sole judge of the extent to which such power of levying special assessments may be exercised by cities. Acting strictly within that power it has declared that the property of all corporations “shall be in all respects subject to all special assessments for local improvements in the same manner and to the sanie extent as the property of individuals.” Such a declaration, interpreted in the light of judicial decisions and recent legislative enactments, can mean only what its plain language imports, namely, that every species of real property owned by corporations shall pay its proportionate share of special assessments for local improvements in the same manner, and to the same extent as the property of individuals, irrespective of the particular use to which such real property may be put.
By the Court. — Order affirmed.
