208 Wis. 70 | Wis. | 1932
The following opinion was filed March 6, 1932:
The suit is to enjoin collection of taxes levied by the taxing authorities of the defendant city in the years
The statute under which the plaintiff claims the property is taxable by the Tax Commission is sec. 76.02, Stats., which provides that the commission shall assess and tax railroad property except real estate “not necessarily used” in operation of the road, which is made subject to local taxation. The only issue is whether the property involved “is necessarily” so used. The trial court found that the property was so used and granted the injunction.
The case is a companion case to Terminal Warehouse Co. v. Milwaukee, 205 Wis. 607, 238 N. W. 513, which the parties agree states the law applicable, and which each side contends rules this case in its favor. The facts of the two cases as to location, ownership, and leasing of the land and erection and use of the building thereon as a warehouse are similar. The statement of the evidentiary facts in the opinion in the Terminal Warehouse Co. Case may be taken as the statement of such facts in this with few exceptions and only a few of such facts need be here mentioned. A six-story building with basement was erected by the plaintiff in 1923 at an expense of $250,000 on railroad property in a principal wholesale and retail district of Milwaukee according to plans prepared by the railroad company. The plaintiff has the right of removal of the building at termination of the fifty-year lease, but the concrete construction of the building is such as to make its removal improbable. The plaintiff also built a dock adjacent to the building, and an old dilapidated shipping depot and warehouse of the railroad on part of the premises was torn down to make place for the building. Two switching tracks constructed and maintained by the railroad company enter the ground floor of the build
The trial court found as ultimate fact that “eighty per cent, of the said building at all times since its erection has been and now is used for receiving, storing, and delivering freight business of the railroad company.” This finding, however, is against the clear weight of the evidence. As appears from the above, sixty-two per cent, of the building is used otherwise and thirty-two per cent, is occupied in storing
It is contended by the respondent that the finding of the trial court “that the erection and completion of said terminal warehouse in the manner in which the same has at all times been used and operated was reasonably required ,in the exercise of sound business prudence by said railroad company” requires affirmance. This language, taken from the opinion in Minneapolis, St. P. & S. S. M. R. Co. v. Douglas County, 159 Wis. 408, 150 N. W. 422, is the equivalent of the statement that the property “is principally used in the operation of the railroad.” The two expressions define the same thing. Terminal Warehouse Co. v. Milwaukee, supra. When it
Certain evidentiary facts are stressed by respondent as ruling the case in its favor. Some of them, solicitation by plaintiff of the “long haul” for the railroad, dockage facilities, erection of the building upon the site and to take the place of buildings of the railroad formerly operated by the railroad as warehouse property, and that the warehouse is a “terminal warehouse,” were as much involved in the Terminal Warehouse Co. Case as here. The fact is stressed that a “shipping depot” of the railroad formerly occupied the site of a part of plaintiff’s building, by which we infer is meant a depot to which freight in less than carload lots is
By the Court. — The judgment of the circuit court is reversed, with directions to dismiss the complaint.
The following opinion was filed May 10, 1932:
The respondent moves for a rehearing and as ground therefor urges that the reversal of the judgment is erroneous because it violates sec. 10, art. I, of the constitution of the United States, which prohibits a state from passing any law impairing the obligation of contracts. The basis of the contention is that the plaintiff in contracting with the railroad company to pay the taxes locally assessed against the leased premises contracted to do so under the law as it stood when the contract was made, and that when this court by its decision in Terminal Warehouse Co. v. Milwaukee, 205 Wis. 607, 238 N. W. 513, changed the rule of the cases previously decided under the statute involved, the change of the law, as applied to the instant case, would impair the obligation of the plaintiff’s contract.
Other grounds for the motion are laid, but no good purpose would be served by discussion of them.
The motion is denied, with $25 costs.