Dalrymple v. City of Milwaukee
10 N.W. 141
Wis.
1881
Check Treatment
Lyon, J.

The demurrers to the complaint go to the whole cause of action, and, although the record contains no ruling upon them by the circuit court, it is manifest that if they are well taken the injunction was properly dissolved. Section 7, eh. 334, Laws of 1878, is applicable to a tax certificate issued in January, 1876, and prescribes a limitation of nine months after publication of that act, within which time an action to cancel such certificаte must have been commenced. The act was published March 25, 1878. But this aet, except section 14, was repealed by the Eevision of 1878 (section 4978), and the above limitation does not seem to have been reenacted therein. Mead v. Nelson, 52 Wis., 402. Yet, by virtue of section 4976, E. S., the limitation continues in force notwithstanding the repeal of the aet of 1878, and the time allowed by law to commence an action to cancel a tax certifiсate issued in 1876, expired December 25, 1878. Mead v. Nelson, supra; Smith v. City of Janesville, 52 Wis., 680. It may be observed that in the opinion of Mr. Justice Oetoít in the former ease, as published in the law periodicals, section 4976 is erroneously cited as section 4984.

It sufficiently appears in the complaint itself that this action was commenced after February 23, 1881, the date of the notice by defendant Nash that he would apply for deeds on the certificates. As matter of fact the record shows that it was commenced in May, ‍​​‌​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌‌​​‌‌‍1881. While on demurrer the court will not look beyond the complaint to ascertain when the action was commenced (Smith v. Janesville, supra; Zœgel v. Kuster, 51 Wis., 31), because the demurrer is aimed at the *184complaint alone, no good reason is perceived why, on a motion to grant or dissolve an injunction, which goes to the equity of the case, the court should not consider the whole record for the purpose of ascertaining the real equities of the parties. We conclude, therefore, that if the certificates in question are tax certificates, within the meaning of the act of 1878, above cited, an action to cancel them was barred by that act when this action was commenced, and the injunction against issuing or receiving deeds thereon was propei-ly dissolved. This brings us to the question chiefly argued on the hearing of the appeal: Is a certificate issued on a sale of land for non-payment of an assessment of benefits for a street improvement, a tax certificate within the meaning of section 7, ch. 334, Laws of 1878, prescribing a limitation of actions to cancel tax certificatеs?

The section is as follows: “Every action or proceeding to set aside any sale of lands for the non-payment of taxes, or to cancel any tax certificate, or to restrain or prevent the issuing of any tax deed or any tax certificate, or to set aside and cancel a tax deed, shall be commenced within nine months after the making of such sale, date of such certificate, or recording of such tax dеed, as the case may be, and not thereafter; provided, that in the case of sales, tax certificates and tax deeds heretofore-made, issued or recorded, such action or proceeding, if not already barred, may be brought within nine months after the publication of this act, and not thereafter.”

1. Is such an assessment a tax? We are clearly of the opinion that the question must be answered in the affirmative. It was said in Knowlton v. Sup'rs, 9 Wis., 410, and repeated in Hale v. Kenosha, 29 Wis., 599, thаt, in a general sense, taxes are burdens or charges imposed by the legislative power of a state upon persons or property for public uses. In the latter case the distinction is stated between assessments and “other kinds of taxation; ” and the folio wing statement of such distinction by Judge BRonson,'in Sharp v. Speir, 4 Hill, 76, is quoted approvingly: “Our laws make a plain distinction *185between taxes, which are burdens or charges imposed upon persons or ‍​​‌​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌‌​​‌‌‍property to raise money for public purposes, and assessments for city аnd 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.”

It sеems to us that the distinction stated by Judge Bbonson is inaccurate and should not have received the approval of this court — or rather of the member of it who wrote the opinion in Hale v. Kenosha,— for the approvаl is only given by way of argument, and was not essential to the decision of the case. The theory of all taxation is, that taxes are imposed as a compensation for something received by the tax-payer. General taxes are paid for the support of government in return for the protection to life, liberty and property which government gives. Assessments of benefits accruing to property by reason of public imprоvements rest on the same principle. Both forms of taxation are for public purposes, and both are alike burdens upon property. The only substantial distinction between the two forms is, that general taxation is bаsed upon value and subject to the constitutional rule of uniformity, while assessments are not. It was broadly stated in several of the earlier Mew York cases, that assessment for benefit is not taxation. In re Mayor, etc., of New York, 11 Johns., 77; Blecker v. Ballou, 3 Wend., 263; Sharp v. Speir, 4 Hill, 76. But in the later case of People v. Mayor, etc., of Brooklyn, 4 Coms., 419, this doctrine is expressly repudiated, and it is held that an assessment for benefits is a tax. The reasoning of Judge Euggles, in his very able opinion in that ease, is to the effect that there are but two methods by which money or property can be lеgally exacted or taken from a citizen by compulsion, to wit, by taxation or by the exercise of the right of eminent domain; and that the distinction between these two methods is, that taxation exacts money from individuals as thеir share of a'public burden, and the tax-payer receives, *186or is supposed to receive, just compensation in the benefits conferred by government, and the proper application of the tax; but property taken by right of eminent domain is not taken as the owner’s share of a public burden, but as so much more than his share, and ‍​​‌​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌‌​​‌‌‍hence compensation thérefor must be made. It being manifest that the imposition of an assеssment is not an exercise of the right of eminent 'domain, it must be an exercise of the power of taxation, and the sum assessed for benefits must necessarily be a tax.

The same doctrine is recognized in some of the cases cited by the learned counsel for the plaintiff in his very ingenious and able argument, notably in Boston Seaman’s Friend Society v. Mayor, etc., of Boston, 116 Mass., 181. Also in Cooley on Taxation, 416, ch. 20. The learned author there says that “ one very important species of taxation is thаt which is exercised in the form of special assessments; ” and he entitles the chapter “Taxation by Special Assessment.” In Weeks v. Milwaukee, 10 Wis., 242, the late Mr. Justice Paine, who delivered the opinion of the court, said: “I have no doubt, if thesе assessments are to be sustained at all, that it must be done upon the ground that they are an exercise of the taxing power.” Page 256. See also Harvard College v. Aldermen of Boston, 104 Mass., 470; Mayor, etc., of Baltimore v. Green Mount Cemetery, 7 Md., 517. It is unnecessary to pursue the subject further. It must be held that the assessment fоr benefits imposed upon the plaintiff’s lots is a tax, and consequently that the certificates issued pursuant to the sale of the lots for non-payment of the assessment are tax certificates.

It only remains to determine whether or not the term “ tax certificates,” as employed in section 7 of the act of 1878, was intended to ‍​​‌​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌‌​​‌‌‍include and does include a tax certificate issued in whole or in part upon a sale of land for non-payment of a special assessment.

The language of the section is general and very comprehen*187sive: “Every action or proceeding to set aside my sale of lands for non-payment of taxes, or to cancel any tax certificate,” etc. This fact has great weight in the intеrpretation of the statute, bnt is not controlling. . The constitutional requirement that “ the rule of taxation shall be uniform ” is equally general in its terms, yet in Weeks v. Milwaukee this court held it qualified and limited by another clause, so as to exclude speсial assessments from its operation. So there are numerous cases, many of which are cited above, which restrict the operation of like general words in statutes, charters and covenants, and exclude special assessments therefrom. But all of these cases seem to have been determined upon the intention of the legislature, or, in cases of covenants, of the parties, which intention in each case was ascertained (as in Weeks v. Milwaukee, supra) from the whole statute or instrument — • due regard being had to the circumstances of each particular case. An interesting discussion of this subject will be found in the opinion by Wells, J., in Harvard College v. Boston, 104 Mass., 470; and numerous.casеs bearing upon it are cited in the opinion, and in the brief ‍​​‌​‌​​​​​​‌​‌​‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​​‌‌​​‌‌‌‌‌‌​​‌‌‍of the counsel for the respondents contained in the report of the case.

We look in vain into the act of 1878, and into the general legislation of thе state on the subject of taxation, to find any solid grounds upon which the general, sweeping language of section 7 can be construed to exclude the certificates issued on sales for non-payment of spеcial assessments. On the contrary, we find that such assessments go into the tax levy, and, in case of non-payment of the same and of the general taxes, the land charged is sold for the aggregate amount of assessmеnt and general tax, and one certificate issues on the sale. It is scarcely to be supposed, that the legislature would thus have blended and intermingled the two levies or charges upon the land, if the effect of thе statute of limitations upon the assessment and the general taxes is as widely different as is claimed. Moreover, it has always been the policy of this state *188to prescribe a limitation upon actions which call in quеstion the ■ validity or regularity of tax proceedings, much shorter than is prescribed in the general statute of limitations. The act of 1818 illustrates this fact. Many, perhaps most, of the reasons upon which this policy is based are applicable as well to assessments as to general taxes; and we find in the statutes no evidence of any legislative intention to discriminate between them in respect to limitations.

Tet, if it should be held that the limitation of section 7 does not govern in a case like this, then there is no limitation of time upon the right to bring this action, unless it can be found in the statute of limitations. We do not determine whether it can be found there, for we discovеr no indication in any statute that the legislature intended to exclude this action from the operation of section 7, and place it within the operation of the general statute. For the reasons indicated, wе must hold that the limitation of section 7 of the act of 1878 is applicable to this action, and had fully run against it before the action was brought.

It follows that the injunction was properly dissolved, and the order appealed from must be affirmed.

By the Court.— Order affirmed.