210 Wis. 85 | Wis. | 1933
Lead Opinion
The following opinion was filed October 11, 1932:
This action was brought by the plaintiff against the town of Townsend to recover an alleged invalid tax, paid to the town treasurer of the town of Townsend under protest. The tax claimed to be illegal was a county tax levied by the county board of Oconto county at its annual meeting held in 1930. The assessed valuation of the county for the year 1929 was $27,272,295. Sec. 70.62 (2), Stats., provides that the “total amount of county taxes assessed, levied and carried out against the taxable property of any county in any one year shall not exceed in the whole one per centum of the total valuation of said county for the preceding year as fixed by the Tax Commission, excepting in so far as a larger per centum may be necessary in order to meet indebtedness incurred prior to the passage and publication of this act.” Plaintiff contends that the total amount of taxes which the county was authorized to levy in 1930 was $272,722.95. The amount’ actually levied was $344,501.84. According to plaintiff’s contention, the amount levied in excess of $272,722.95, amounting to $71,778.89, was an invalid levy. It claims that the proportion of this invalid levy assessed against it and paid under protest amounted to $219.15, which it is entitled to recover.
The first limitation upon the. amount of county taxes which may be levied is found in ch. 293, Laws of 1895, and
' The one per centum limitation must be held to apply in every instance where the legislature imposes additional burdens calling for additional taxes unless the legislative intent be revealed, either expressly or by implication, that the additional burden is not to be included within the one per centum limitation. It was not the legislative thought, when the one per centum limitation was imposed, that counties would assess up to that limitation. The purpose was; to prevent the burden of taxation by the county exceeding, the one per centum limitation.' As additional burdens: were' imposed, it might well have been assumed by the legislature that the one per centum limitation afforded ample opportunity for the county to discharge its obligations imposed by the new legislation, keeping within the one per centum
The defendants place great reliance upon the principle announced in Oconto City Water Supply Co. v. City of Oconto, 105 Wis. 76, 80 N. W. 1113, and in Kyes v. St. Croix County, 108 Wis. 136, 83 N. W. 637. Those cases laid down the rule that “when the legislature confers authority upon a municipal body having power to levy taxes to contract a debt for some specific object, and makes no special provision for its payment, the very act of conferring the power to create the liability by implication clothes, the municipal authorities with power to levy the necessary tax to discharge it,” irrespective of any general limitation imposed upon the taxing power. This principle was elucidated in U. S. ex rel. Ranger v. New Orleans, 98 U. S. 381, at p. 395, as follows:
“Indeed, it is always to be assumed, in the absence of clear restrictive provisions, that when the legislature grants to a city the power to create a debt, it intends that the city shall pay it, and that the payment shall not be left to its caprice or pleasure. When, therefore, a power to contract a debt is conferred, it must be held that a corresponding power of providing for its payment is also conferred. The latter is implied in the grant of the former, and such implication cannot be overcome except by express words excluding it.”
We cannot see that this principle has any application here. The county has not been authorized to incur any specific
We therefore proceed to examine the various items entering into the total of this tax levy with a view of ascertaining whether the legislature intended that any of them should not be included within the one per centum limitation.
First of all, the levy includes an item of $43,750 for county school tax. The trial court excluded this item as not being within the one per centum limitation. There is po question but that prior to the passage of ch. 536, Laws of 1927, this item did not constitute a county tax. State ex rel. Board of Education v. Hunter, 119 Wis. 450, 96 N. W. 921. As the law stood prior thereto, the county board was required to determine “the amount to be raised by tax in each town for the support of common schools for the ensuing year, which shall not in any town be less than the amount apportioned to such town in the last apportionment of the income of the school fund.” Sec. 70.62, Stats. 1925. This was simply a provision requiring towns to raise at least as much for school purposes as they received from the state for such purposes. It was a tax with which the county had nothing to do and, rather obviously, did not constitute a county tax, as was distinctly held in the Hunter Case, supra. However, ch. 536, Laws of 1927, generally, revised the law extending state aid to school districts, and placed such state aid upon a different basis. The underlying principle of the law is, that the education of the youth of the state is a matter of state concern, and that the property of the state should in a measure bear the expense of educating the youth of the state. This principle was extended to the counties, and the county was required to levy a tax on all of the property of the county to be apportioned to
The levy complained of also included $4,500 as salary and expenses of county superintendent of schools. Sec. 70.62, Stats. 1929, provides “that the county board shall, by separate resolution adopted by a majority of the members of the board not prohibited from voting thereon by section 39.01, determine the amount of tax to be levied to pay the compensation and allowances of the county superintendents of schools and designate therein the cities exempt from taxation therefor.” Sec. 39.01 (5) provides that “Cities which have a city superintendent of schools shall form no part of the county superintendent’s district, shall bear no part of the expense connected with the office of county superintendent of schools; and'shall have no part in the determination of any question or matter connected with or arising out of said office, nor shall any elector or supervisor of such city have any voice therein.” The trial court excluded this item as not being within the one per centum limitation. He evidently did this because of the phraseology of sec. 70.62, which requires the county board to determine (1) the amount of taxes to be levied in their county for county purposes; (2) the amount to be raised for the support of common schools; and (3), by separate
The trial court also excluded an item of $750 for county bridge aid, raised pursuant to the provisions of sec. 87.01, Stats. For reasons already discussed, we can see no ground upon which that item can be excluded. We discover no provision anywhere in the statute to indicate, either expressly or by implication, that the legislature did not intend the amount so appropriated to be included within the one per centum limitation.
The trial court also excluded an item of $22,025 for bonds and interest on bonds. That this item should not be excluded is plainly apparent from the provisions of sec. 70.62, which fixes the one per centum limitation, “excepting in so far as a larger per centum may be necessary in order to meet indebtedness incurred prior to the passage and publication of this act.” The last publication of the act was in 1907 and, consequently, there was no indebtedness in 1930 incurred before the passage of the act. The express provision that amounts required to meet indebtedness
The trial court also excluded an item of $1,365.56 for soldiers’ relief, levied under the provisions of sec. 45.10, Stats. That section of the statutes makes it the duty of every county board to annually levy, “in addition to all other taxes, a tax sufficient to carry out the purposes of this section.” The phrase “in addition to all other taxes” indicates a legislative intent that, at all events, the county boards shall levy the tax provided by that section, whether or not the levying of the tax exceeds the one per centum limitation. There could be no other reason for the phrase. Taxes levied under this section were not intended to be included within the one per centum limitation.
We arrive at the same conclusion with reference to highway taxes levied under the provisions of sec. 83.06, Stats. Sub. (4) of that section provides that “The county board shall annually levy a tax of not more than two mills on the dollar, which tax shall be in addition to all other taxes, and shall be kept in a fund known as the ‘County Road and Bridge Fund;’ and expenditures from said fund shall be made only for the purposes of constructing and maintaining highways and bridges under the provisions of this chapter, and for the purpose of purchasing, operating, renting and repairing machinery, quarries and gravel pits used in such construction and maintenance.” The levy included an item of $120,000 levied under the authority of this section. The court found that this item was $131,100, which was erroneous. The total amount of tax collected for highway purposes was $121,100, but $1,100 was levied under the provisions of sec. 83.14 as aid to towns. It will be noted that the tax levied under sec. 83.06 “shall be in addition to all other taxes.” This indicates a clear legislative intent that
However, $120,000 was actually levied for highway purposes, which is $65,555.41 in excess of the two mills additional tax authorized by sec. 83.06. If it should be held that sec. 83.06 (4) is a limitation upon the amount of highway taxes which may be levied by the county, then that excess would be invalid, whether or not the total amount of the other taxes was under the one per centum limitation. But we do not construe sec. 83.06 (4) as a limitation upon the power of the county to levy highway taxes. Rather extensive obligations are imposed upon the county with reference to the maintenance of highways, and it is not to be presumed that the legislature intended to limit the county levy for that purpose to two mills. Sec. 83.06 (4) is rather a command than a limitation. It provides that the county board shall annually levy a tax to be known as the "County Road and Bridge Fund” and expenditures therefrom shall be for the purposes therein enumerated. This does not indicate a limitation upon the power of the county to levy a tax for highway purposes if it can be done within the one per centum limitation, but rather commands the county to constitute a “County Road and Bridge Fund,” for which purpose it may levy a tax “in addition to all other taxes,” and not to exceed two mills. The county was therefore authorized to levy a tax in 1930 up to the full amount of its one per centum limitation,' equal to $272,722.95. To this sum is to be added $1,365'.56 which wás assessed for the soldiers’ relief fund, and $54,444.59 which it might assess in highway taxes in addition to the one per centum limitation under sec. 83.06 (4). This makes the authorized
By the Court. — Judgment reversed, and cause remanded with instructions to enter judgment in accordance with this opinion.
The following opinion was filed January 10, 1933:
Rehearing
{on motion for rehearing). The trial judge deducted from the amount of the county levy moneys included therein which were levied under sec. 83.06 (4), Stats. This court held that only two mills on the assessed valuation levied under this section could be deducted from the one per cent, limitation. The motion for rehearing does not quarrel with this construction of the statute, but the claim is that the record does not show, that more than $5,000 included in the total levy was levied under the provisions of this section, and that this is the only amount that could be deducted from the one per cent, limitation.
It is not easy to determine from the record the respective sections under which the highway taxes were levied. The trial court found that all of the highway taxes, except those noted in the opinion, were levied under sec. 83.06 (4). This finding was not challenged on the appeal, and it is conceded that the point here urged was not pressed upon the original hearing. In view of these considerations, we are not disposed at this time to make a reinvestigation for the purpose of determining whether a larger amount levied for highway purposes should have been deducted from the county levy. Under the circumstances, we are disposed to apply the principle of De minim,is non curat lex. The motion upon this ground is therefore denied.
The opinion seemed to give the impression in some quarters that the fact that moneys levied for the purpose of meeting the principal and interest of the bonded indebtedness of a county should be taken into consideration in determining whether the county had exceeded the limit of taxation of one per cent, prescribed by sec. 70.62 (2), jeopardized the security of bonds issued by the county for which taxes had already been levied. Such impression is most unfortunate, no matter whether the opinion is reasonably susceptible to such construction or not. At any rate, it becomes our duty to negative any such purpose, and to emphatically declare that the limitation of one per cent, set by the provisions of sec. 70.62 (2) does not and cannot have any effect upon taxes theretofore levied for the purpose of meeting the principal and interest of county bonds.
But our constitution and statutes require that at the time of incurring any county indebtedness, or the issuance of any county bonds, a tax shall be levied for the purpose of meeting the principal and interest of such indebtedness or bonds when it becomes due. That tax is irrevocable. It stands for all time. The provisions of sec, 70.62 (2) do not and
The only question considered in the 'main opinion was whether taxes theretofore levied for the purpose of meeting the principal and interest of county indebtedness should be computed in determining the amount that might be levied under sec. 70.62 (2). It seems plain by the provisions of sec. 70.62 (2) itself that such indebtedness should be taken into consideration where the indebtedness had been incurred subsequent to the passage and publication of the act. This could not serve to invalidate taxes already levied for the payment of indebtedness, but is only material to be considered upon the question of the amount in addition thereto that may be levied. We saw no danger from such a construction of the statute in view of the fact that if the total amount of authorized indebtedness had been incurred to run twenty years, the sum necessary to pay the principal would amount to only one-half of the amount authorized by sec. 70.62. That.left the county board one-half of the amount authorized by that section for purposes other than the payment of its indebtedness, and we could see no reason why the legislature might' not have so intended. The only result would be to compel counties to curtail current expenditures. In no event could they jeopardize the payment of existing indebtedness. Whether this amounts to an unlimited ad valorem tax for the payment of such indebtedness, which seems to be required by some regulations
The whole trend and history of the decisions of this court are as favorable to the collection of municipal indebtedness as any system can well be. It is thoroughly established in this state that a municipality that has received and used the moneys of creditors .cannot escape the repayment of such moneys because of any invalidity in the bonds issued for the repayment thereof.
Under these decisions the municipality is liable to any creditor for money had and received, and any one who has loaned money to the municipality which has been received and used by the municipality for municipal purposes may recover of the municipality, and the amount of the judgment so recovered must be placed upon the next tax roll and collected with other moneys. Sec. 66.09, Stats. The amount of such levies will not come within the limitation of sec. 70.62, and affords the creditor a sure and certain way of collecting the moneys which he may have loaned to any municipality, — and this even though there be some technical error in the issuance of the bonds upon which he loaned his money.
While we regret the misconstruction placed upon the opinion in this case, we do not yet feel that the opinion was properly susceptible to such a misconstruction; but,