Johnston v. City of Oshkosh

21 Wis. 184 | Wis. | 1866

Dixon, C. J.

The charter of the city of Oshkosh, under which the taxes were assessed and the lands sold, provides (secs. 4 and 6, ch. 7, Pr. Laws of 1856, pp. 244-5), that notice shall be given by the street commissioners of any public improvement determined upon by them, to the owners or occupants of the lots or parcels of land fronting on any street, alley or sidewalk ordered to be graded, graveled, planked or paved, requiring such owners or occupants to do the work mentioned in such notice, within a reasonable time therein to be specified; and if such work shall not be done within such time, the commissioners shall enter into a contract for the doing thereof. It is alleged in the third separate defense made by the answer, that no such notice was given to the. defendant Joseph Stringham, who was then the owner of the lot in question, the same being at that time unoccupied ; and that allegation is admitted by the demurrer. This is an insuperable objection to the validity of the taxes for the non-payment of which the deed was executed. The street commissioners bad no power to enter into the contract without having given the notice. Kneeland v. Milwaukee, 18 Wis., 411.

Section 19 of chapter 8 of the charter, p. 253, provides that “ all the directions hereby given for the assessing of lands and the levying and collecting of taxes and assessments, shall be deemed only directory, and no error or informality in the proceedings of any of the officers entrusted with the same, not affecting the substantial justice of the tax itself, shall vitiate or in any wise affect the validity of the tax or assessment.” It is contended for the plaintiff that the giving of the notice is only directory, and that the omission does not avoid the tax. It is obvious that the provisions of this section do not apply to the notice, but are intended to govern the proceedings of the officers after the debt or liability for which the taxes are assessed or levied, has once been lawfully created. Without any debt or liability the very ground work of the tax is wanting, and there can be no valid assessment or levy. As well might the municipal authorities attempt to assess or levy a tax without any improvement having been directed at all, or without its having been made. But if this section does apply to the notice, it is still within the exceptions contained in the section itself. Every one having had the slightest experience in such matters knows that the right reserved to owners and occupants to make the improvements themselves is a substantial right, and one which cannot be dispensed with without very great danger of oppression and injustice.

The first separate defense contained in the answer, and which is demurred to, is not well pleaded. The grounds of exemption from taxation are numerous, and the facts showing the property not to have been liable should have been stated.

By the Court. — The order of the court below is affirmed as to the first separate defense, and reversed as to the third; and the cause remanded for further proceedings according to law.