199 Wis. 85 | Wis. | 1929
Following the remittitur of the record pursuant to the mandate of this court in In re Dancy Drainage District, 193 Wis. 118, 213 N. W. 885, certain holders of bonds of the Dancy Drainage District made application to
These contentions must fail. The act in question is clearly a general law and, in common with the other provisions of the drainage law, applies to all parts of the state. Counsel cites and relies upon State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N. W. 947, where a drainage law applying only to Dane county was held to be a special law and void. The only analogy between the present law and the law there considered is that they both relate to the subject of drainage. Our present drainage law, however, is state-wide in its application aqd its provisions' may be invoked anywhere within the boundaries of the state. Sec. 89.37 (4) (d) may be invoked anywhere within the state where situations arise falling within its purview. Such an act cannot be considered as a special, local, or private law.
It is next contended that, granting the constitutionality of the law, the court violated its provisions in denying to Portage County any portion of the proceeds of the sale for the general taxes due the county upon the lands upon which it had taken a tax d.eed. It is here conceded and later determined that the lien of general taxes is superior to the lien of special drainage assessments, and that upon a sale of lands under the.provisions of sec. 89.37 (4) (d) there should first be deducted “any unpaid general tax due the county.” Such are the explicit provisions of sec. 89.37 (4) (d). The court withheld from the county the general taxes claimed, because the taking of the tax deed by the county extinguished the tax. There was no tax due the county. This is held in
However, another question is presented which perhaps is not so clear. Some of the tax deeds upon these lands were taken by the county in April, 1928. They were assessed for general taxes in 1927 and returned delinquent in 1928, and
The county further complains that the court improperly allowed ten per cent, interest upon the outstanding drainage certificates. At the time the drainage certificates in question were issued the statute specifically provided, that they should draw interest at the rate of ten per cent, per annum (sec. 89.37 (4) and (6), Stats. 1925), and by ch. 531,
The county further complains because the court allowed to the drainage district the amount due on outstanding drainage certificates for the sale of 1921 upon which it is claimed that the statute of limitations had run prior to the institution of these proceedings. That this is a fact does not appear from the face of the record, neither does it ap
Upon the appeal of the Hanchett Bond Company the constitutionality of sec. 89.37 (4) (d) is also challenged, but for reasons not hereinbefore considered. This appellant finds fault with the provisions of said section because it provides that “from the moneys received from the sale of said lands the county treasurer shall first deduct any unpaid general taxes due the county.” It perhaps should be stated that in Marathon and Wood counties the claims of said counties for general taxes were first paid out of the proceeds of the sale, which reduced the amount of money going to the drainage district for the payment of bonds. It is contended that the lien of the drainage assessments at all times was superior to the lien for general taxes, under the provisions of the drainage statutes.
This drainage district was organized in 1906. At that time the statutes (sec. 1379 — 22) provided that such assessments should be a lien on the land until paid. That continued to be the law until the passage of ch. 557, Laws of 1919, when^said sec. 1379 — 22 was amended to read:
“Assessments for construction, additional assessments and assessments for repairs and interest thereon shall be a first lien upon the lands assessed from the time of recording the order of confirmation of the same in the office of the register of deeds of the county in which the lands are situated until paid, and shall take precedence over all other liens and mortgages, whether accruing prior to the time of the filing of the petition under the drainage district law or not, excepting only lien for general taxes.”
Prior to the passage of ch. 557, Laws of 1919, the law
This appellant further attacks that provision of par. (d) which provides that “When lands shall have been finally sold under order of the court as provided herein, they shall be released from all lien of assessments levied prior to the time of such sale.” It is contended that this provision takes property without just compensation and violates the obligations of contract. The argument of counsel in this behalf is not followed with ease, neither are the equities of his contention contemplated with patience. ' The history of this drainage district has given rise to many annoying problems owing to the fact that the project did not come up to the estimated benefits, resulting in a defalcation of the payment of the bonds. The legislature has from time to time enacted laws to enable the bondholders to realize upon their bonds, of which they have taken advantage, only later, in too many instances, to be challenged as unconstitutional. However, we realize that a constitutional right cannot be evaded by these considerations nor an argument upon a con
In a brief amici curice filed, the constitutionality of par. (d) is further challenged because of the lack of notice provided. That is a question not raised by any of the parties to the proceeding, neither could it be raised by any party before the court, because throughout the proceeding, from beginning to end, all possible requirements with reference to notice have been punctiliously complied with. However, let us analyze the paragraph and see what notice is necessary to satisfy the calls of due process of law, bearing in mmd that this is a statute designed to facilitate the collection of delinquent taxes. It first provides that the circuit court may, upon the application of certain persons specified, direct the county treasurer to offer said lands for sale at public auction. The application giving rise to these proceedings was made by two holders of the bonds of the Dancy Drainage District. Notice of a hearing upon said application was given to all parties interested and a hearing was had, and before the order was made every one interested
By the Court. — So ordered.
(d) In case that any of the lands so bid in by the county shall have not been redeemed or certificates assigned within the period prescribed by the statutes relating to general taxation, the circuit court may, upon the application of the county, the commissioners, or of any creditor or bondholder of the drainage district within which said lands are located, direct the treasurer of such county to offer said lands for sale at public auction, in such manner as the court shall direct, and notice of such sale shall be served upon the parties interested by publication once each week for three successive weeks in a newspaper published in the county, by posting in five public places in the drainage district and by mailing a copy of the notice to each interested party whose postoffice address is known or can by reasonable inquiry be ascertained and to the secretary and clerk of each corporation affected. Report shall be made and deed issued in the manner provided by sections 278.16 and 278.17, and from the moneys received from the sale of said lands the county treasurer shall first deduct any unpaid general taxes due the county and the costs of such proceedings, and shall pay the balance of such moneys in the manner and to such creditors or bondholders as the court shall direct. When lands shall have been finally sold under order of the court as provided herein, they shall be released from all lien of assessments levied prior to the time of such sale.