37 Wis. 645 | Wis. | 1875
The only questions involved in this case are those
That special tax was imposed to defray the expense of a sewer, authorized to be constructed by ch. 213, P. & L. Laws of 1871. The act in question authorized the common council of the city of Madison to order the construction of a sewer, commencing at a point near the gas works and extending into Lake Monona, and to charge the expenses of the improvement in whole or in part upon the lots or parcels of land lying and situated upon the marsh located in the second and third wards of said city. This is substantially the language of the act, and really all there is of it relating to the construction of the sewer.
Some objections are taken to the constitutionality of this law. It is said that it is private and local in its nature, embracing more than one subject, which is not expressed in its title. For the purpose of disposing of this branch of the case, it is unnecessary to dwell upon these objections, and we shall not do so further than to remark that we deem them untenable. In our opinion, the invalidity of the sewer tax does not turn upon the unconstitutionally of the act of 1871, but rests upon another ground. FoJ’, while the act empowered the common council to construct the sewer and to charge the expense in whole or in part upon the lots on the marsh adjacent to the sewer, yet, in order to authorize making such charge upon the lots, the work should have been done in compliance with the city charter regulating that kind of improvements. Under the provisions of the city charter, the common council could order sewers to be built at the expense of the lots benefited thereby, and fronting upon the street along which the sewer was con-
It is, however, claimed that the common council, in the construction of this sewer and in levying and assessing the tax, were controlled by the act of 1871, and that the general provisions of the charter in relation to that class of improvements did not apply. But this, we think, is a mistake. The only additional power given the common council by this act, beyond that conferred by the charter, for constructing sewers, was the right to charge the expenses of the improvement upon all the lots situated on the adjacent marsh. In other words, the act changed the principle upon which the special tax was to be levied. The expense of the sewer might be charged in whole
The validity of the general tax is also questioned. It is objected that this tax is invalid, first, because the lots were not assessed to the plaintiff, who is the owner of them, and whose deeds were on record. They were assessed to her husband. The statute requires that real estate should be assessed in the name of the owner or occupant, except in case of unoccupied lands, where, if the owner is unknown, they may be assessed as such, without inserting the name of any person. Assessors should undoubtedly use all proper diligence, and avail themselves of all means of information convenient to ascertain the owner. In case the property is in the actual possession of any one, that is, where persons are residing, on it, it is, of course, easy to ascertain the name of the occupant, to whom the land may be assessed. But in some cases it is not practicable for assessors to ascertain the true owner with the exercise of diligence and the means of information at their command. They have to do the best they can to comply with the law. But it would be laying down too strict a rule on the subject to say the assessor was chargeable with notice of the record title, and if he happened to make an honest mistake in regard to the real
But it is said that some of the lots were actually occupied, and that the assessor might readily have ascertained from those in possession who owned them, or should have assessed them to the occupants thereof. In respect to the homestead on lot 18, block 114, it is obvious that the husband was as much the occupant of that lot as the plaintiff. In regard to the other lots, on account of the use to which they were applied, it might have been difficult for the assessor to find out who in fact was the occupant. Some of these lots were used by Conlin for a pasture; some were occupied by Glenz for a tobacco field ; and some by Longfield for a garden. It does not appear that there was any dwelling house upon any of them, or any other building occupied by tenants. When there are persons residing upon property, the assessor can, by diligence and inquiry, learn who they are. Not so when the lots are used and occupied for a pasture or garden which occupancy and possession the officer may naturally assume are the owner’s. Certainly there is nothing in such possession and occupancy which would tend to prove bad faith on the part of the officer, if he happened to assess the property in the name of the wrong person.
The other objections taken to the general tax, that the common council misappropriated funds, or illegally borrowed money, or were guilty of extravagance in the management of the affairs of the city, cannot prevail. If .any or all of these objections were held sufficient grounds for setting aside a general tax, it would be quite difficult to sustain the government. Unfortunately, improvidence in the management of the public finances is not chargeable alone to the authorities of municipal corporations. It is a common and general evil, but the remedy will be found elsewhere.
It follows, from these views, that the judgment of the circuit 'court must be reversed, and the cause must be remanded with
By the Court. — It is so ordered.