96 Wis. 116 | Wis. | 1897
The city charter of the city of Milwaukee provides that: “No person shall be permitted to institute any action or proceeding to set aside any assessment or special tax . . . upon any lot or tract of land , . . unless such person shall first pay or tender to the proper party, or
It is not contended but that all the provisions of the charter were complied with up to and inclusive of the assessment of benefits and determination of the basis upon which the cost of the improvément should be apportioned and charged to the abutting property. But it is insisted that no authority existed for including in such cost keeping the streets in repair for a series of years, putting in protection curbing across unpaved streets and alleys, and raising and constructing cross walks, and that the inclusion of such elements rendered the special tax void. This court-so held in Boyd v. Milwaukee, 92 Wis. 456, and appellant does not seek, as we understand it, to reopen what was there decided. That case came to this court on appeal from an order of the trial court granting an injunction pendente lite. The question of whether the property owner should be compelled to pay that part of
The rule invoked by appellant was early laid down by this court, and has become thoroughly intrenched in the jurisprudence of this state, though perhaps not heretofore-clearly extended so as to meet a case like this. It is based on the familiar principle of equity jurisprudence that he-who seeks equity must do equity. Following such principle,, it is well established that a court of equity will not grant relief to restrain a tax sale, cancel a tax certificate, or restrain the issue of a tax deed thereon, except upon terms that the taxes be first paid to which there are no objections,, or which, in justice and equity, the property owner ought to pay. Hersey v. Milwaukee Co. 16 Wis. 185; Bond v. Kenosha, 17 Wis. 284; Myrick v. La Crosse, 17 Wis. 442; Mills v. Gleason, 11 Wis. 470. Though, for a time, these-adjudications were supposed to have been somewhat discredited, reference being had to Marsh v. Clark Co. 42 Wis. 502; Tierney v. Union Lumbering Co. 47 Wis. 248; Plumer v. Marathon Co. 46 Wis. 163, and some other cases that might be cited, the doctrine of the early cases has since been repeatedly affirmed, and it stands now unassailable in this, court. Fifield v. Marinette Co. 62 Wis. 532; Wis. Cent. R. Co. v. Lincoln Co. 67 Wis. 478; Canfield v. Bayfield Co. 74
From the foregoing it is obvious that the legislative policy and the administration of the law in equity is firmly set in the direction of compelling property owners to bear their just and equitable portion of the public burdens. Whether such •equitable rule applies to special assessments, and, if so, to what extent, is worthy of some consideration. In Myrick v. La Crosse, 17 Wis. 442, the rule was invoked, but not applied. It may be assigned fairly as the reason therefor, that the lot owner was entitled to do the work himself, if he so -chose; that the requisite proceedings were not had to give him that privilege before assessing his property for the cost •of the improvement; hence that there was no jurisdiction for charging such property at all. In Hayes v. Douglas Co. 92 Wis. 429, the rule was not applied, for the obvious reason •that the assessment of benefits requisite to jurisdiction to impose any tax on the abutting property for the improvement was not made. In Watkins v. Zwietusch, 47 Wis. 513; Johnson v. Milwaukee, 40 Wis. 315; Rork v. Smith, 55 Wis. 67; Dean v. Madison, 9 Wis. 402; Jenkins v. Rock Co. 15 Wis. 11; Liebermann v. Milwaukee, 89 Wis. 336; and Saunderson v. Herman, 95 Wis. 48 — the groundwork of the entire tax was wanting, in that there was a failure to give the lot owner the opportunity to do the work where such opportunity was secured to him by law, or there was a failure to .make any assessment of benefits so as to arrive at a legal •basis f.or apportioning the cost of the improvement, or there was some other difficulty going to the groundwork of the entire tax, and showing that it was unjust and inequitable. In Kneeland v. Milwaukee, 18 Wis. 411, the provision of the charter requiring filing of the plans and specifications,
The sole complaint here is that certain elements of expense were improperly included in the cost of the improvement. Determine to what extent such elements enhanced the total cost of such improvement, deduct such excess from the total, and the result will show the amount which plaintiff in justice and equity ought to pay. In Cook v. Racine, 49 Wis. 243, the basis for apportioning the tax was properly determined. The contract was let to do the work for forty cents per front foot, when responsible parties offered to do the same for twenty-five cents per front foot. The action was to set aside the whole tax as void for fraud in letting the Contract. On the trial it was established by evidence that ■twenty-five cents per front foot was a reasonable price, and that the municipal officers refused ample opportunity to let the same at that price. This court held, reversing the court below, that collection of the tax should be restrained and the certificate canceled on condition of payment, within such
The rule under discussion is not confined to cases of mere irregularities, as is sufficiently shown by Mills v. Charleton, supra, and Cook v. Racine, supra, but applies to all cases where the taxes are in part just and equitable, whether legal or not, and part illegal, unjust, and inequitable, if the latter can be distinguished from the former. The application of this doctrine, though there are cases indicating a contrary view, in our opinion should not be confined to instances where the illegal excess consists of distinct items or can be determined without evidence by mere computation, but should be extended to all cases where such excess can be judicially determined by evidence to a reasonable certainty, the same as other facts in issue; the burden being on the person seeking to enforce the tax which includes the illegal excess to establish by clear and satisfactory evidence the
If the foregoing be an extension of the equitable rule, in view of State ex rel. Roe v. Williston, 20 Wis. 228, and other cases that might be cited, such extension is required to effectually give force to the manifest policy of the-legislative de-' partment of the state, which it is the duty of the court to do yrithin constitutional limits. It is in the direction of the •ever-growing adaptation of equitable principles to the more perfect administration of justice, and is yet short of the advanced ground occupied by courts of the highest respectability elsewhere, as will be seen from a few examples. In State Railroad Tax Cases, 92 U. S. 575, there was no question but that the taxes were void for want of a legal assessment of the railway property. The very groundwork of the tax was wanting. The railroad companies sought to avoid all their taxes, notwithstanding it stood admitted that they had a large amount of real and personal property subject to taxation. Mr. Justice Millek, speaking for the court, said, in effect, that evidently the property should be taxed by some rule; that it could not be said the whole tax is void in equity because a wrong rule had been adopted whereby an excessive amount was imposed; that the property holder in such a case •cannot escape, and pay nothing, because the amount assessed is too much; that before he can be relieved of the excess tax he must pay what ought to be paid, so far as it can be as-
From the foregoing we deduce the following conclusion : When,, as in this case, the statutory requisites to the assessment of a tax for a street improvement upon abutting property are all complied with .up to the time of filing the estimates or specifications for letting the work,— that is, when the assessment of benefits has been in all respects legally made, so as to determine a proper basis upon which to apportion the cost of the improvement properly chargeable to abutting property,— and the subsequent proceedings result ■
The foregoing requires that the judgment be reversed' and the cause remanded for further proceedings in accordance with this opinion.
By the GouH.— So ordered.