Massing v. Ames, 37 Wis. 645

37 Wis. 645 | Wis. | 1875

Cole, J.

The only questions involved in this case are those relating to the validity of the sewer tax and the general tax for the year 1871. As a condition to granting the relief asked in respect to the other taxes or special assessments, the court below required the plaintiff to pay these taxes. It is insisted by the counsel for the plaintiff that the sewer and general tax were likewise void, and that their collection should have been restrained by injunction. So far as the sewer tax is concerned, we think this position is correct and must be sustained.

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-strueted. But before such work was ordered to be done, the charter required the common council to cause an estimate of the whole expenses of the work to be made, and of the amount to be charged or assessed upon each lot; and this estimate was to be filed in the office of the city clerk, for the inspection of the parties interested. Secs. 10,11, ch. 6 of the charter (P. & L. Laws of 1868, ch. 500). There are other provisions regulating the manner of letting the work to the lowest bidder; and, in a certain contingency, authority is given for doing the work under the supervision of the street superintendent. All these steps must be taken in the order in which they are prescribed ; and this court has frequently held that the taking of each constitutes a condition precedent to doing the work. Myrick v. The City of La Crosse, 17 Wis., 443; Kneeland v. The City of Milwaukee, 18 id., 411; Kneeland v. Furlong, 20 id., 437. It follows from these decisions, that the making and filing of the estimates was essential to give the common council jurisdiction in the matter, and that they had no right to proceed to construct the sewer at the expense of the lot owners without complying with the charter in that regard. There is no pretense that these estimates were made and filed before the sewer was ordered to be constructed under the direction of the street superintendent and city surveyor. This omission was fatal to the jurisdiction of the common council.

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 or in part upon the lots on the adjacent marsh without regard to the fact whether the lot fronted upon the sewer or not. This is really all the change this law makes, or attempts to make, in the method of constructing and paying for the sewer, manifestly leaving the work to be done in accordance with the provisions of the charter which regulated and controlled the performance of such improvements. This, it seems to us, is too obvious to require argument or illustration in its support. For the assumption that the legislature intended to take the construction of this sewer out of the general provisions of the city charter, with the single exception of prescribing a different principle upon which the tax for its payment was to be levied, is quite unwarranted. The city charter did control so far as it was applicable to the improvement, and the work should have been done in conformity with its provisions.

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 owner, tbe assessment was void. Where the assessor knows, or has reliable information as to the real owner, he is inexcusable in assessing the property to the wrong party. And this court has held in a number of cases which have come before it, that an assessment, under one aggregate valuation, of lots owned by different persons, was void and would not sustain a tax. State ex rel Roe v. Williston, 20 Wis., 228; Crane v. Janesville, id., 305; Hamilton v. The City of Fond du Lac, 25 id., 490, 496. But it is obvious that the principle of these decisions does not apply, there being no pretense that the assessor knew in this case that the property belonged to the plaintiff instead of her husband, to whom, in fact, it was assessed. In Hamilton v. Fond du Lac, 25 Wis., 490, it was charged in the complaint that the assessor knew when he made the assessment that the plaintiff’s wife was the owner in fee of certain lots, and this allegation was of course admitted to be true by the demurrer. And the decision goes in that case upon the ground that the assessor knew the owner, but stupidly or willfully assessed the lots to the husband. In such a case there is a most cogent reason for holding the assessment void, because not made in the name of the owner. Did it appear that Mr. Massing informed the assessor, when the assessment was made, that the lots belonged to his wife, and not to him, or had it been! shown that the assessor knew from other sources of information, that the plaintiff owned them, a different rule would apply.1 But no such fact is established in the case, and we are therefore unwilling to hold the assessment void because of the mistake of the officer in naming the husband as the owner instead of the wife on the assessment roll. When the wife has a separate estate which is not known to the assessor, a mistake in assessing the property to the husband, instead of to the wife, is more likely to be made than in other cases. And, as there is nothing in' the present case to impeach the good faith of the assessor, or which tends to show that he did not act according to his best information upon the subject, we are disposed to disregard the error.

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 directions to grant tbe relief asked, upon tbe plaintiff’s paying tbe general tax for tbe year 1871.

By the Court. — It is so ordered.