134 Wis. 197 | Wis. | 1908
The complaint in question sets forth that the plaintiff is a railroad corporation organized on May 25, 1880, by the consolidation as authorized by law of the North Wisconsin Railway Company and the Chicago', St. Paul & Minneapolis Railway Company, which last-named corporations had theretofore been organized and existing railway corporations — the North Wisconsin Railway Company since 1871; that each was organized under and pursuant to the laws of Wisconsin; the legal status of the three counties defendant; the official character of the three county clerks defendant; the corporate character of the private corporations defendant; that defendants Arnold, Moffet, McLean, Durant, Earman, Alvord, Guaranteed Investment Company, Lawler, Powers, Byan, Riley, Grocher, Elliott, Bond, Harmon, Barbour, Eranceshetti, J. L. Gates Land Company, James L. Gates, Kennedy, Smith, Boyd, and each of the three counties, hold certificates of tax sale against the lands hereinafter described, running back, in one case at least, to 1885, and continuing down until 1906; and that the defendants Mackey, Durant, Earman, Byan, Washburn county, Riley, Bond, Jr., Mary L. Bond, Barbour, Eran-ceshetti, J. L. Gates Land Company, Smith, and North Wis-
The Congress of the United States, by an act approved June 3, 1856 (11 Stats, at Large, 20, ch. 43), and another act approved May o, 1864 (13 Stats, at Large, 66, ch. 80), granted certain lands to the state of "Wisconsin for the purpose of aiding in the building óf a line of railroad from a point on the St. Croix river or lake between townships 25 and 31 to the west end of Lake Superior, and from some point on the line of said railroad a branch line to Bayfield, Wisconsin, the grant to include every odd-numbered section along the lines of said railroad for ten miles in width upon each side thereof. This grant was upon certain terms and conditions, fully set forth in said acts of Congress. Thereafter the state of Wisconsin duly accepted the said grants of land, and thereafter on March 11, 1874, in and by ch. 126 of the laws for that year, the legislature of the state of Wisconsin granted to the said North Wisconsin Bailway Company the lands granted to the state for the purpose of aiding in the building of the railroad from St. Croix river to Bayfield; and later the legislature of Wisconsin, by ch. 10, Laws of 1882, granted to the plaintiff the lands along said line of railroad extending from a point near Spooner, Wisconsin, to the west end of Lake Superior. Both of these grants inured to the benefit of the plaintiff; the latter by direct grant, and the former by reason of the plaintiff being the successor of the North Wisconsin Bailway Company. These grants were made subject to certain conditions contained in ch. 126, Laws of 1874, and ch. 10, Laws of 1882, which required the
The North Wisconsin Bailway Company with reference to the line of railroad between St. Croix river and the village of Bayfield, and the plaintiff with reference to the line of road connecting with that line near the village of Spooner and extending to the west end of Lake Superior, each duly and definitely located its line of railroad and caused to be filed with the secretary of the interior of the United States government at Washington a map of such location. This location and map was duly approved by the secretary of the interior, and the location of each road duly accepted and approved by the state of Wisconsin and the lines of railroad
This constitutes tbe statement of plaintiff’s right, interest, or title in and to the lands in question. It is then averred tbat tbe state of Wisconsin through its proper officers, its governor and commissioners of public lands, wrongfully made claim to all tbe lands in question as swamp lands, contending tbat tbe state owned said lands because they bad passed to it by grant from tbe United States under act of Congress of 1850 (Act Sept. 28, 1850, cb. 84, 9 Stats, at Large, 519) ; and tbe state of Wisconsin bas wrongfully persisted in making this claim to tbe lands described in tbe complaint for upwards of twenty years, bas refused from time to time upon due and proper demand to issue or deliver to tbe plaintiff a patent or patents for said lands or any part thereof, and bas made frequent and persistent claims before tbe land department of tbe United States that tbe lands in question belong to tbe state of Wisconsin under tbe swamp land grant of 1850, and this notwithstanding tbe lands in question bad been duly certified by tbe secretary of tbe interior to tbe state of Wisconsin as part of tbe grant of lands made to said state for tbe purpose of constructing tbe lines of railroad be
Each of the demurrers raises the objection that the complaint does not state facts sufficient to constitute a cause of action, hut the separate demurrer of the county of Wash-bum and that of W. 0. Crocker and others also proceed upon the ground that several causes of action have been improperly united. The underlying question is whether the complaint states a cause of action, because, before we can determine whether or not causes of action are improperly united, we must determine whether a cause of action is stated and then whether more than one cause of action is stated. Lee v. Simpson, 29 Wis. 333; Koepke v. Winterfield, 116 Wis. 44, 92 N. W. 437; Boyd v. Mut. F. Ins. Asso. 116 Wis. 155, 90 N. W. 1086, 94 N. W. 171. The aver-ments of the complaint above recited and to be taken as true on demurrer amply show that the plaintiff is the beneficial owner of the lands in question and that such lands are subject to taxation (Wis. Cent. R. Co. v. Price Co. 133 U. S. 496, 10 Sup. Ct. 341, affirming same case, 64 Wis. 579, 26 N. W. 93, as to lands situate like the lands in question within the ten-mile limit), unless the state is estopped from levying, assessing, and enforcing the payment of taxes against such lands. The decision of the circuit court in favor of respondent must therefore be upheld, if at all, on the ground that hy reason of the alleged wrongful and unjust claim of the state to own the lands in question under the swamp land grant of Congress and the acts aforesaid of the state officers in assertion of that claim, the state, and through the state its subordinate municipal agencies, the counties and county officers defendant, are estopped from levying, assessing, and enforcing by sale taxes upon the lands in question.
Perhaps no other technical legal term is more loosely used than the term “estoppel.” It is used sometimes to
The decision of the court below, however, goes far beyond any of the foregoing cases and to the full extent that the state may by acts in pais be estopped to exercise its taxing power, because the estoppel here pleaded is one thought to arise against the state from acts of the state and only to affect the counties defendant because, in assessing and levying the taxes in question, they represent the state and are therefore bound by the alleged estoppel. Examining this question upon principle we find it adjudged that the state cannot by express grant divest itself of its police power (Thorpe v. Rutland & B. R. Co. 27 Vt. 140; Butchers’ Union S. H. & L. S. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S.
“The doctrine that a state may grant or bargain away beyond recall the right of taxation, a high political and sovereign power, essential to the very existence of the state, and without which no governmental functions can be exercised or carried on, has always seemed to me to rest upon very unsatisfactory grounds, and I am unable to assent to its general correctness.”
In Att'y Gen. v. R. Cos. 35 Wis. 425, Ryan, C. J., speaking for the court, at pages 572, 574, after quoting this language, said: “This has been the unanimous opinion and decision of this court, always, in all cases before it.” The taxing power is a legislative power, an incident of sovereignty essential to the existence of a state, and exists without being expressly conferred on the state. McCulloch, v. Maryland, 4 Wheat. 316; Railroad Co. v. Peniston, 18 Wall. 5; West Hartford v. Board of Water Comm’rs, 44
“That the taxing power is of vital importance, that it is essential to the existence of government, are truths which it cannot be necessary to reaffirm. They are acknowledged and asserted by all. It would seem that the relinquishment of such a power is never to be assumed. We will not say that a state may not relinquish it — that a consideration sufficiently valuable to induce a partial release of it may not exist; but, as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.”
And, it is said in Easton Bank v. Comm. 10 Pa. St. 442, 450: “If such an exemption exists, it must be the result of a deliberate intention to relinquish this prerogative of sovereignty, distinctly manifested.” See, also, Christ Church v. County of Phila. 24 How. 300; Gilman v. Sheboygan, 2 Black, 510; Memphis G. L. Co. v. Shelby Co. 109 U. S. 398, 3 Sup. Ct. 205; East Saginaw Mfg. Co. v. Saginaw, 19 Mich. 259; East Saginaw S. Co. v. East Saginaw, 13 Wall. 373; Erie R. Co. v. Comm. 66 Pa. St. 84; Erie R. Co. v. Pennsylvania, 21 Wall. 492; Bradley v. McAtee, 7 Bush, 667; People ex rel. Cunningham v. Roper, 35 N. Y. 629; Citizens’ Sav. Bank v. Owensboro, 173 U. S. 636, 19 Sup. Ct. 571; Stone v. Bank of Comm. 174 U. S. 412, 19 Sup. Ct. 747.
In Northern Cent. R. Co. v. Maryland, 187 U. S. 258, 270, 23 Sup. Ct. 62, there was at first a controversy between the railway company and the state with reference to the right of the former to exemption from taxation, and in settlement of this controversy and of certain pending actions the Maryland legislature by enactment provided for the payment of certain sums of money by the railway com
“We hold simply that a municipal corporation may be estopped by the action of its proper officers when the corporation is acting in its private, as contradistinguished from its governmental, capacity and has lawful power to do the act.”
To the same effect is Kuhl v. Mayor, 23 N. J. Eq. 84, although other reasons are given for the decision.
We distinguish the cases of State v. Milk, 11 Fed. 389; Comm. v. André’s Heirs, 3 Pick. 224, and other cases of that class as involving a matter of grant rather than an exercise of the taxing power, and the case of People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891, as not involving this question, because the tax deed was void upon other grounds and the es-toppel mentioned by the court, and apparently decided without much discussion, was that the state, after having assumed to tax the lands as the property of others, could not set up a proprietary right in itself. We distinguish the case of Iowa R. L. Co. v. Story Co. 36 Iowa, 48, as involving no question of estoppel, because the lands there in question were not liable for taxation, neither the legal title nor the beneficial interest having passed to the first grantee from the government. It is vain to declare for or against an estoppel to levy and collect taxes in an opinion which at the same time holds that the land was not taxable under the general laws. On the other hand, Whitehead v. Plummer, 76 Iowa, 181, 40 N. W. 709, was a case where the question of estoppel might have arisen if the acts of the governor were the acts of the state, because the lands were held to be otherwise taxable. Here, however, the decision was against the estoppel claimed, but apparently on the ground that the governor in this respect was not the state. Calhoun Co. v. Am. E. Co. 93 U. S. 124, involved the question whether a county, proprietor of certain lands not liable to taxation by the laws of Iowa
“Other suggestions failing, the respondents contend that the agreement not to tax the land before the conveyance was made _ is without authority of law and is null and void; but the court here is not able to concur in that proposition, as the lands were held by the county in their proprietary right, and as such were as much subject to bargain and sale as lands held by an individual.”
The real question in this case was whether or not during the two years in question the lands were the property of the county and therefore not taxable by statute. The estoppel here, if that rule was proper to be applied at all, was an estoppel to claim the lands were not the property of the county during the two years in question, and the state law exempting them from taxation worked out the invalidity of the taxes. Rogers L. M. Works v. Am. E. Co. 164 U. S. 559, 17 Sup. Ct. 188, relates to the estoppel of the state in the capacity of proprietor by .the determination of the secretary of the interior having jurisdiction of the subject matter, coupled with the l’eception and retention thereL under by the state of an inconsistent grant. We cannot perceive in either of these cases any decision which goes to the extent that a state may be estopped from an exercise of its taxing power by acts in pais. The estoppel pleaded here is rather based upon alleged inconsistent conduct.
The plaintiff was not and does not claim to have been misled or deceived into failing to pay its taxes by the act of the state. It is sought to hold the state to its alleged wrongful claim that the lands in question belong to it. The mutuality of estoppel might also tend to conclude the respondent on this proposition. It is not clear how the respondent could
. By the Court — It is so ordered, and tbe cause remanded ■for further proceedings in accordance witb this opinion.