110 Wis. 11 | Wis. | 1901
As regards the plaintiff’s right of recovery, the record furnishes no information as to the grounds upon which it was denied. The argument by the defendant in this court is that the ordinance is void (1) because it purports to create an exclusive franchise for twenty years; (2) because it is in effect an agreement to exempt plaintiff’s property from taxation; (3) because that part of it sued on is so indefinite and uncertain as to furnish no basis for a recovery.
1. The ordinance in question gives the plaintiff an exclu
“ The grant of this exclusive right was neither immoral nor illegal. It was merely ultra vires. W e know of no rule of law or morals which relieves the recipient of the substantial benefits of a partially executed contract from th^ obligation to perform or pay that part of the consideration which he can perform or pay, because the performance of an insignificant portion of it is beyond his powers. On the other hand, the true rule is, and ought to be, the converse of that proposition. It is that when a part of a divisible contract is ultra vires, but neither malum i/n se nor malum prohibitum, the remainder may be enforced, unless it appears from a consideration of the whole contract that it would not have been made independently of the part which is void,”—citing Oregon S. N. Co. v. Winsor, 20 Wall. 64; Reagan, v. Farmers' L. & T. Co. 154 U. S. 362; Western Union Tel. Co. v. B. & S. W. R. Co. 11 Fed. Rep. 1; Saginaw G. L. Co. v. Saginaw, 28 Fed. Rep. 529.
2. Does the ordinance amount to an agreement to exempt the plaintiff’s property from taxation? An agreement for immunity from taxation will not be recognized, unless couched in terms too plain to be mistaken. Chicago, B. & K. C. R. Co. v. Guffey, 120 U. S. 569. Where, however, the agreement is express, and the intention evident, to exempt property and release it from tax burdens, it is void and will not be enforced. Little Falls E. & W. Co. v. Little Falls, 74 Minn. 197; State v. H. & St. J. R. Co. 75 Mo. 208. Many other cases might be added, but the rule is so generally recognized that further citation is not necessary. The rule is equally well established that it is competent for a city and a company to agree that, as the price of services to be rendered, the city will pay a sum equal to the amount of municipal taxes to be levied. Ludington W. S. Co. v. Ludington, 119 Mich. 480; Cartersville I. G. & W. Co. v. Cartersville, 89 Ga. 683; Grant v. Davenport, 36 Iowa, 397. Of course, it must appear that the sum so stipulated to be paid is a fair and just allowance to compensate for the actual value of the services to be rendered, and that the stipulation is Iona fide, and not in the nature of an evasion of the law against exemption from taxes. The stipulation in this case is not subject to this objection. The water company agrees to furnish water for flushing gutters and sewers; also for school and public buildings, drinking and display foun
3. Is the part of the ordinance sued upon sufficiently definite that it may be enforced? The clause in question reads as follows:
“The city agrees to pay each.year to said grantee, in addition to the hydrant rentals herein stipulated, a sum equal to the amount of state, county, and city taxes which may be levied upon such portion of said waterworks plant as is located on the streets and public grounds.”
Up to the year 1898 taxes were levied only upon the real estate and pumping station, at a valuation varying from $1,000 to $6,000. That year the assessor assessed all the franchises, rights and privileges, real estate, machinery, -standpipe, water mains, hydrants, fountains, and all other property of the company as an entirety, at a lump sum of $30,000. This was done, presumably, in pursuance of the law as established by this court in the cases of Yellow River Imp. Co. v. Wood Co. 81 Wis. 554; Fond du Lac W. Co. v. Fond du Lac, 82 Wis. 322; and State ex rel. Milwaukee St. R. Co. v. Anderson, 90 Wis. 550, which was later confirmed by distinct legislative enactment. Sec. 1037a, Stats. 1898. These cases recognized the fact that franchises are property, and possess a value capable of being estimated, and are liable to taxation in the place where the corporation does business, and may be assessed for that purpose as a part of the aggregate
There are other minor questions urged against defendant’s recovery. One is that a counterclaim is not permissible in cases appealed from city councils. Sec. 48, ch. 238, Laws of 1882 (defendant’s charter), provides that, when a claim has been disallowed and an appeal taken, “ such appeal shall be entered, tried, and determined in the same manner as appeals from justice of the peace,” etc. Sec. 3768,
Another ground of complaint is that evidence was admitted of inadequate fire pressure at fires occurring more than six years prior to the date from which recovery was .sought, and also after the controversy had gotten into court. We have-grave doubts of the admissibility of this evidence. The real issue was the manner and kind of service furnished •during the period for which a recovery was claimed. Im-pérfect service or want of due diligence at other times would not necessarily sustain the cause of action sought to be enforced, and. might be distinctly prejudicial to the other side. It cannot be justified on the ground of showing a habit or ■custom or course of conduct existing for a long time, because, according to the bill of particulars, there was a period from 1891 to 1895 that no serious complaint was made.
The other objections urged are not of sufficient importance to require attention.
By the Court.— The judgment is reversed, and the cause is remanded for a new trial.