151 Wis. 198 | Wis. | 1912
Is the order appealable? Neither party has raised the question, but since this court acquires no jurisdiction to consider the merits unless it is appealable, the question of the appealability of an order is always involved in a consideration of its merits. Hyde v. German Nat. Bank, 96 Wis. 406, 71 N. W. 659; In re Minn. & Wis. R. Co. 103 Wis. 191, 78 N. W. 753; Sioux L. Co. v. Ewing, 148 Wis. 600, 135 N. W. 130. Confessedly it is not an order affecting a substantial right made in an action which in effect determines it and prevents a judgment from which an appeal might be taken; neither is it an order affecting a.substantial right made
Plaintiff contends that the order was improperly made, for three reasons: (1) because ch. 295 of the Laws of 1909 has no application to special assessments; (2) because, even if it does apply to them, it does not affect the instant case, where the proceedings taken by the municipal authorities are void ab initio; and (3) that if it does apply it is unconstitutional. [While it is true that, generally, there is a clear distinction between taxes and special assessments, and between statutes relating to taxes and statutes relating to special assessments, yet the word “tax” has often been held to be broad enough to include a special assessment. Yates v. Milwaukee, 92 Wis. 352, 66 N. W. 248; Sheboygan Co. v. Sheboygan, 54 Wis. 415, 11 N. W. 598; Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141. WHiether or not the word “tax” in a statute includes a special assessment must generally be gathered from the context of the particular statute, the intent of the legislature as ascertained from the general scope of the act, and of the related acts of which it is designed to become a part. Marine Co. v. Milwaukee, post, p. 239, 138 N. W. 640.
It is urged that since sec. 12107i — 1 refers only to taxes, tax certificates, and tax deeds, and does not anywhere mention special assessments, they are not included within its provisions. It should be borne in mind, however, that when tax proceedings have reached the stage of a tax sale, tax certificate, or tax deed, there is no longer any need to discriminate between general taxes and special assessments. Both are in-
Attention is also called to the fact that the subhead of the statute under which sec. 1210ft — 1 falls .is entitled “General taxes; Eeassessment when assessment void.” But under such subhead, which begins with .sec. 1210ft -and ends with sec. 1210/, fall secs. 1210c2, 1210e, 1210/, and 1210A, which relate to or mention special assessments. So the title of the subhead furnishes no safe or satisfactory criterion for determining whether or not the word “tax’- in see. 1210ft — 1 includes or excludes special -assessments.
The further argument is made that since see. 1210ft, Stats. (1898), mentions both general taxes and special assessments, sec. 1210ft — 1, which does not mention special assessments, should be construed not to -apply to them. Sec. 1210ft, — 1 was created by ch. 295 of the Laws of 1909. The chapter was entitled “An act to create sections 1210ft — 1, 1210ft — 2, 1210ft — 3, and 1210ft — 4 of the statutes, relating to actions to set aside the sale of lands for taxesand sec. 1 thereof begins, “There are added to the statutes four new sections to read,” etc. The act seems to be-*general in its nature, and in view of the fact that special -assessments are included in the amount for which lands are sold for taxes, and in the tax certificates and tax deeds issued-pursuant to such sales, no good reason is perceived why the section is to be construed to be limited only to actions seeking to set aside general taxes. In Dalrymple v. Milwaukee, 53 Wis. 178, 10 N. W. 141, the court construed sec. 7 of ch. 334. of the Laws of 1878 to apply
“Every action or proceeding to set aside any sale of lands for the nonpayment of taxes, or to cancel any tax certificate, or to restrain or prevent the issuing of any tax deed or any t^x certificate, or to set aside and cancel a tax deed, shall be commenced within nine months after the making of such sale, date of such certificate, or recording of such tax deed.”
Such construction was based chiefly upon the ground that since special assessments go into the tax levy, and, in case of the nonpayment of the same and of the general taxes, the land charged is sold for the aggregate amount of the special assessments and general taxes, and but one certificate issued on such sale, it was not reasonable to suppose that the legislature would thus blend and intermingle the two levies or charges upon the land and provide different statutes of limitation as to each. So here in the instant case it is not reasonable to suppose that, since lands are sold for nonpayment of general taxes as well as special assessments, and the same are mingled in the tax sale, the tax certificate, and tax deed, the legislature would require, as a condition precedent to the maintenance of an action relating to general taxes, a deposit, and not require one in the case of an action seeking to set aside a special assessment. The new sections added must be held to be general in their nature and not to be limited by the language used in the previous section. No doubt the legislative idea was that as an earnest of good faith and as a guaranty that plaintiff believed in the justice of hjs cause, he should be required to deposit the amount in controversy as a condition precedent to the maintenance of the action. No reason, so far as we can perceive, exists why such a deposit should be required in the case of an attack upon general taxes any more than in the case of an attack upon special assessments.
Plaintiff contends that the assessment in the instant case was void ab initio because the city council acquired no juris
Tbe lands in question were within its taxing district. Tbe council therefore bad jurisdiction to impose tbe tax and of tbe lands sought to be taxed. It, however, did not proceed according to tbe provisions of tbe charter, in that it passed a resolution ordering drains to be laid before it passed a resolution ordering tbe streets to be paved, and in that, as to one street, it failed to give notice to tbe .lotowners to construct tbe drains. These were errors in procedure that affected tbe groundwork of tbe tax. It will be noted that tbe law requiring a deposit to be made is limited to an action to set aside a tax for any error or defect going to tbe validity of tbe assessment or affecting tbe groundwork of sucb tax. This relates
Since sec. 1210k — 1 is construed to apply only to cases where there is a defect or error in the tax proceedings and not to cases where there is an absolute want of power to tax, the contention that it violates sec. 1 of the XIVth amendment to the constitution of the United States, and art. V of the amendments to the constitution of the United States, and secs. 1 and 9 of art. I of the constitution of this state, falls. The question of the constitutionality of the section is ruled by the.decision in Lombard v. McMillan, 95 Wis. 627, 70 N. W. 673.
By the Cov/rt. — Order affirmed.