106 Wis. 411 | Wis. | 1900
The theory of appellant is that, all money collected by the county treasurer on the special assessments was collected for his use by express provision of the city
Sec. 21 of the charter (ch. 124, Laws of 1891) provides the basis for the action of the city clerk in placing special assessments for street improvements in the city tax roll, in the following language: “ He [the city comptroller] shall make and deliver to the city clerk a list of all certificates for the payment of which special taxes are to be levied in each year, in time for the same to be- inserted in the tax roll, in the form of a schedule of special taxes.” At this point it will be noted that special assessments are spoken of as taxes. In subch. XII, which treats of assessment and collection of taxes, special assessments are uniformly spoken of as distinct from taxes. Sec. 102 in such subchapter provides that the city clerk shall place before the common council, each year, certain information for their consideration in determining the amount of taxes to be raised for such year, but such requirement does not include anything relating to special assessments. The scheme of the charter is that no action of the common council shall be required as to the placing of such assessments in the tax roll. They are thus placed from information furnished directly to the-
The language of sec. 106, that the city treasurer shall have the same authority as to special assessments as in case of general taxes, does not indicate that such assessments are treated at that point as special taxes, strictly so called. The term “general tax” is used with reference to the-manner of imposing the tax upon property, in that it is levied thereon generally, by a uniform percentage, according to the value thereof. Taxes are spoken of as special if levied for a special purpose, and general if levied for some of the ordinary purposes of municipal government; but whether taxes be levied for a general or special purpose, if placed upon prop
Up to this point it is quite clear that the charter indications are that money collected on account of special assessments belongs to the owners of the certificates; that the municipal machinery is put in motion for the collection thereof solely for the benefit of the owners of the assessment liens, and that the municipality, at no point, can obtain any ownership of such liens or the money received in process of enforcing them. Every step in the proceedings to enforce such liens is required to be taken by municipal officers pursuant to a municipal agency for the owner of the certificates, created by law.
It has been repeatedly held by this court that the sole duty of a city, under charter provisions for the payment for street improvements by special assessments upon the property benefited, is to use the proper machinery for the collection of the assessments in the manner indicated by the charter; that the expense of the assessments cannot be made a general city liability in any way. Finney v. Oshkosh, 18 Wis. 210; Fletcher v. Oshkosh, 18 Wis. 229; Whalen v. La Crosse, 16 Wis. 271; Hall v. Chippewa Falls, 47 Wis. 267; Heller v. Milwaukee, 96 Wis. 134.
It is not claimed by respondent that special assessments, under the charter of the city of Superior, can become a general liability of the city, but it is said that the charter provides that if such assessments be not paid to the city treasurer, after being placed in the tax roll for collection, within the time allowed by law, they shall, with all other delinquent taxes of the city, be used to discharge the liability of the city to the county, and, if in excess of the amount required for such purpose, to obtain a credit with the county to be discharged by it by payment to the city as fast as collections are made; and that as soon as the city thus obtains
Eow, if the theory of the respondent be correct, we must be able to find in the section quoted where the treasurer is required to set aside money to provide for the payment of special assessments. That is evident, for he cannot be compelled to pay such assessments out of money set aside for some other purpose, and a construction would be too unreasonable to be adopted which would result in holding that special assessments can be used by the city to pay its liabilities to the county and there be no equivalent fund for im
In the opening lines of the section it says that the amounts placed in the tax roll of the city for the various municipal purposes shall be satisfied out of the taxes collected. In substantially all previous provisions of the charter, rightly considered, the term “tax” is used as distinct from special assessments, so it is reasonable to say that special assessments, at this point, are not included in the term “ taxes collected.” One of the purposes to be satisfied by the setting aside of money from taxes collected, is “ special taxes in the order in which they are levied.” The term “special taxes ” at this point evidently refers to taxes levied by resolution of the common council for some special purpose. The term, “ in the order in which they are levied,” can have no reference to special assessments. Such assessments are not “ levied ” in the sense in which that term is obviously used in the section. Again, if the delinquent return of special assessments results in there being an equivalent of money in the hands of the city treasurer for the payment of such assessments, there can be no priority of one of such assessments over another. So it is veiy evident that the term “ special taxes ” has no reference to special assessments.
The only other purpose mentioned in the section, that the city treasurer is required to satisfy out of taxes collected by him, which by any possibility can include special assessments, is covered by the term “ taxes raised for street and other public improvements.” Consistent with the entire scheme, up to this point, it is reasonable to say that the term 4t taxes ” does not here include special assessments, because, as indicated, the two species of burdens are uniformly differently designated, and the language “street and other improvements ” refers to taxes levied by resolution of the common council. The special assessments, if respondent’s theory be correct, can all be absorbed by the city by using
But the section says that the delinquent return shall be made to the county treasurer the same in all respects as required by the general laws of this state relating to towns, and that thereafter such proceedings shall be had with reference to the delinquent taxes so returned as are provided for in case of delinquent returns from towns. That obviously incorporates the general law of the state, regarding the return of delinquent taxes from towns, into the city charter. However, if it refers to special assessments as well as to taxes strictly so called, still it must be noted that the distinction in alL the preceding provisions of the charter between taxes and special assessments was in the legislative mind at this point. Eor while provision was made for the delinquent return in general language — including all burdens upon property, whether in the form of taxes strictly ¡so called or special assessments — when it came to provide for the treatment of liens upon property represented by the delinquent return after coming to the hands of the county •treasurer, only taxes are mentioned, which may reasonably be said to mean taxes imposed generally upon property.
It is certainly reasonable to say, if there be a provision in the charter specially referring to the treatment of special .assessments, that only taxes strictly so called were intended to be covered by sec. Ill, because, as before indicated, no provision is made for setting aside, by the city treasurer, for the benefit of the owners of special assessment liens, an •equivalent for such as are included in the delinquent return. So such liens must, it would seem, follow the lands and be ■owned by the owners of the special assessment certificates
At this point we are met with Sheboygan Co. v. Sheboygan, 54 Wis. 415, where it was held that the principle of sec. 1114, R. S. 1878, is that the county shall assume all delinquent taxes and become liable to the municipality returning the same, and that if such return includes special assessments for street improvements they shall take the same course as other delinquent taxes; that the word “ taxes,” as used in the section, includes taxes of every nature, special assessments as well as general taxes, and that in case of a special assessment lien, it is discharged, so far as the certificate holder is concerned, as soon as the municipality obtains credit for the delinquent return representing the same, and that such certificate holder is entitled to immediately call upon the city treasurer for his money. That might rule this case if there were nothing in the charter under consideration clearly excepting special assessments from the provisions of sec. 1114, Stats. 1898, regarding the ownership by the county of tax liens returned delinquent. Sec. 129 of the Superior charter provides specially for the collection of special assessments for the benefit of the owners of the assessment certificates, treating the assessment liens as private property from the time the amount thereof is extended on the tax roll until finally realized, whether by payment before or after the assessments are returned delinquent to the county treasurer. The language of the section is as follows : “ The comptroller’s statement of the special assess
It is impossible to adopt the theory upon which this case was decided in the court below, and which is insisted upon here by respondent, and give effect to the words of sec. 129, “•all moneys collected by the county treasurer or county clerk, on account of such taxes, shall be delivered or paid to the owner of t.he same, on demand, upon the surrender of such certificate.” It will be noted that the holders of certificates are expressly referred to as the owners of the special assessment liens down to the time of their actual collection, whether by the city treasurer or the county treasurer- or the county clerk. The idea plainly expressed is that such liens remain upon the lands charged, as the private property of the certificate holders, until an equivalent therefor in money shall have been actually placed in the hands of some one of the officers mentioned for payment to such holders upon the surrender of their certificates. That is wholly inconsistent with the theory that the certificate holders cease to be the owners of the special assessment liens as soon as the tax, so called, extended upon the tax roll for their discharge, passes into the hands of the county treasurer as a part of the delinquent return from the city treasurer.
The provision to the effect that special assessments shall be treated as other taxes does not indicate that they are to be confused with other taxes and that the entire amount, composed of special assessments and general taxes, is to be treated in one sum as a lien against the property affected. Such assessment liens cannot be reasonably treated as solely the private property of the certificate holders except by a delinquent return, keeping special assessments separate from other taxes, and subsequent proceedings to enforce such liens, if such proceedings become necessary, including advertisement of the lands affected by the assessment liens for sale separately therefor and the issuance of certificates of sale which shall not include any tax liehs that belong to the public. In case lands, sold for the purpose of enforcing special assessment liens, are bid in by the county, the certificates of sale, when issued, are not the property of the county, but of the holders of the special assessment certificates. The county, in such circumstances, becomes a trustee of the tax-sale certificates for the actual owners thereof, and the treasurer should turn the same over to them — the holders of the special assessment certificates — on demand therefor and surrender of such certificates. In case of such a sale and of the lands being"bid off by some person other than the county, or the county treasurer bidding off the property for the county and then selling the certificates, the money received
The foregoing is tbe only reasonable construction of tbe charter provisions referred to, that will give effect to all of them. Any other construction would leave the plain language of sec. 129, as to payment by the county treasurer and county clerk to the owner of the special assessment lien, of money coming into their hands on account of such lien, without any effect whatever.
By due regard to familiar rules for statutory construction, the foregoing indicated result is reached by a logical course of reasoning. A general provision, covering a subject as a whole, must be deemed to have been intended as subordinate to a particular provision relating to a particular element included in such subject. Again, when there is a particular clause of an act, or a special act, and a general clause or act the language of which may be reasonably, though not necessarily, construed to include the subject of the particular clause or act, the presumption is that the latter was intended as an exception. Mason v. Ashland, 98 Wis. 540. Both of such rules apply to secs. Ill and 129 of the charter of the city of Superior. The language of sec. 129, in its literal sense, must be taken either as providing specially for street assessment liens, in which case the special provision would prevail over any general provision covering a subject that may reasonably be said to include such liens, or it plainly excepts special assessments out of the general provision of sec. 111. It seems that the clear legislative intent, by the language of sec. 129, was to provide for handling delinquent special assessments as private property separate and distinct from delinquent taxes, strictly so called. It must prevail whether the two sections are in harmony or not. But in
The suggested difficulties in administering the charter of Superior, on appellant’s theory, in that after the delinquent taxes reach the county treasurer there is no way by which he can tell what part constitutes special assessments and what part refers to other taxes, all disappear when it is considered, as it must be, that the provision requiring special assessments to be returned delinquent and to be thereafter treated in the same manner as other delinquent taxes, but for the sole benefit of the owners of the special assessment liens, by necessary implication requires such assessments to be specifically noted in the delinquent return, and that in the advertisement of the sale of the lands to enforce the assessment liens they shall be treated separate from other delinquent taxes. According to the relation before us, the special assessments in question, prior to the making of such petition, were paid to the county treasurer; therefore it was his plain duty, on the relator’s application for the money
By the Gourt.— The order of the circuit court is reversed, and the cause is remanded with directions to issue a peremptory writ of mandamus in accordance with this opinion.