Bond v. City of Kenosha

By the Oourt, Cole, J. We do not understand that any other objection is taken to tbe validity of tbe tax for state, county, city and school purposes, than that tbe railroad property within the city limits was exempted in levying those taxes. This objection has been overruled in cases already decided, and need not be further considered. So, even assuming that tbe harbor tax so called was void, still tbe respondent would not be entitled to a perpetual injunction restraining tbe proceedings under tbe tax sales, except upon tbe condition that be paid the valid taxes which in equity be was bound to pay. For we have held that when tbe valid and void taxes were separable, and tbe amount of tbe former could be readily ascertained, then tbe resisting tax payer must pay those which were legal as a condition to being relieved from tbe payment of tbe [288] illegal tax. Mills vs. Johnson, unreported, and Hersey vs. Supervisors of Milwaukee Co., 16 Wis., 185. And further when it appears that no actual injustice has been done, the error or irregularity complained of resulting in a diminution instead of an increase of the tax, that in such circumstances a court of equity ought not to interfere to restrain the proceedings. Warden vs. Supervisors of La Fayette Co., 14 Wis., 618; Kellogg vs. City of Oshkosh, id., 623; Miltimore vs. Supervisors of Rock Co., 15 id., 9. Here there can be no difficulty in determining the amount of the tax levied for state, county, city and school purposes ; and therefore the respondent ought to pay those taxes, even if he is right in the theory that the other tax is wholly void. But we are of the opinion that even the harbor tax is valid. That tax was undoubtedly levied under section 48 of the original charter. This section authorizes the city council to levy a special tax of any sum not exceeding ten thousand dollars annually, for the purpose of constructing a harbor at the south mouth of Pike creek, said tax to be levied on all lands and town lots within the limits of the city subject to taxation not including any improvements made thereon. In lieu of a tax, the council was authorized to borrow money on the credit of the city in such sums as they might deem proper, not exceeding ten thousand dollars, providing the taxes levied for the payment of the principal and interest on the money borrowed should be levied on the same kind of property that the tax for the construction of the harbor was levied on. In this case the tax was levied to pay the interest borrowed for the improvement of the harbor. It appears that the respondent’s lots were improved ; and it is alleged that the assessment of the harbor tax was made upon the lots “as though divested of improvements.” But still it is insisted that the tax is illegal, because it was levied in violation of the rule of uniformity required by the constitution. But we are of the opinion that the provision of the constitution relating to uniformity in taxation does not [289] apply to a tax of this character. It is more properly speaking of the nature of an “ assessment,” or special tax imposed for the purpose of municipal and local improvements. To that species of taxation we have held that the principle of uniformity did not apply. Weeks vs. City of Milwaukee, 10 Wis., 242; Lumsden vs. Cross, id., 282; State ex rel. Christopher vs. The City of Portage, 12 Wis., 562; Reeves vs. The Treasurer of Wood Co., 8 Ohio St., 333. If, then, assessments for local improvements do not come within the purview of the section in respect to uniformity in the rule of taxation, then the m'anner and principle upon which they may be imposed rest very much in the discretion of the legislature. In this case the burden is placed upon the real estate aside from the improvements, because that property is more especially benefited by the harbor improvement. At all events this seems to have been the view taken by the legislature of the matter when it prescribed the basis upon which the harbor tax should be levied. We cannot say that it is unjust or inequitable,or,above all,that it transcends the power of the legislature over the subject. The real estate of the city derives a more direct and special benefit from the harbor improvement, and consequently the burden is laid upon that-class of property. And as the respondent’s real estate'is improved, and the tax is levied upon it “ as though divested of improvements,” it is probable that his tax was rather diminished than increased by the mode or principle of assessment upon which the tax was laid. Eor these reasons we are of the opinion that the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.