State ex rel. Allis v. Mayor of Milwaukee

| Wis. | May 5, 1862

By the Court,

Cole, J.

This case must turn upon the construction which is placed upon the resolution set forth in the relation. By the resolution, the mayor and city clerk were authorized to issue city orders to the owners of lots upon which special taxes had been paid for the ship canal, to the amount of such special taxes. The construction of the ship canal having been abandoned, the city authorities, by this resolution, took steps to refund the taxes which had been paid by property owners for the purpose of making that improvement. This seems to have been the occasion for passing the resolution.

The return alleges that the relator never paid any money to his own use, by reason of the special tax for the ship canal, upon the property described in the relation; but that at the time of levying and collecting the amount of the taxes on the property, viz., $303, for the purpose of’constructing the proposed canal, the property was owned by Ludington, and White; that afterwards the property was conveyed by them to the relator, and the sum of $303 for the special tax was deducted from the purchase money, and the deduction was made at, the instance and request of the grantors; and that the relator paid the special taxes to the city with the money so furnished to him by Ludington, Watkins and White, to whom the order for the amount of the special tax had been issued under the resolution. We do not give the precise words, but state the substance of the return. And does it not show a satisfactory reason for not issuing the order to the relator ? It seems to us it does.

It is true the relator owned the property at the time the resolutions were passed for refunding the money. But according to the above averments, though he then owned the property, yet he himself had paid no special tax upon it. Eor this special tax had really been paid by his grantors. The amount thereof had been deducted from the consideration money, and the relator went and paid it into the city treasury for and on behalf of his grantors. It is the same in effect as though he had paid the entire consideration money to his grantors, and they had paid the tax in person, or had furnished him with the money to pay it for them as their agent. Under such circumstances, can there be a doubt as to the party entitled to have the benefit of the resolution ? Suppose Ludington, Watkins and White had paid the special tax themselves, and then conveyed the property to the relator, intermediate such payment and the abandonment of the work and the passage of the resolution ? Oould the relator then insist upon having the amount of the special tax paid to him, merely because he happened to own the property at the time of this action by the city authorities ? It seems to us that he could not, and that any such assumption on his part would have been unfounded in equity and justice, and unwarranted by the object and purposes of the resolution. And still we perceive no essential difference between the case supposed and the one presented on the face of the relation. Eor if the relator’s grantors had furnished him the money to pay the special tax, or if such tax was deducted from the purchase money, then 'the substance of the transaction was, that the tax was paid by them and not him. They received so much less for their property than they would, had not this tax been assessed against it. They had contributed out of their own fund thp amount of the special tax. And when the work was abandoned — when the object for which the money had been-collected failed— then it was manifestly just and proper that this money should be paid back to the persons from whom it had been collected; This was what the resolution contemplated, and the return shows that this was done. Of course, on the demurrer, the -matters stated in the return must be assumed as true. The demurrer admits them to be true, añ¿ this case must be so considered on this appeal.

We therefore, think the demurrer-to the return was improperly sustained.

The order of the circuit court sustaining the demurrer is reversed, and the cause remanded for further proceedings according to law.