Sheboygan County v. City of Sheboygan

Lyon, J. It is not alleged or claimed that the special assessment or tax was not legally levied, or that it is not a valid charge against the lots upon which it was imposed. The action is based solely upon the proposition that in his settlement with the city treasurer the county treasurer should not have allowed the amount of the grading tax or assessment, and therefore that the county had a valid claim against the city [420] for the sum thus improperly credited to the city. The learned circuit judge held that the city was entitled to the credit, and hence sustained the demurrer to the complaint. We are satisfied that the ruling is correct, and the grounds of our opinion will be briefly stated. The law governing the settlement between the two treasurers is. contained in the Revised .Statutes, p. 360, sec. 1114. This is made perfectly clear by the provisions of the charter of the defendant city, contained in Laws of 1877, ch. 29, secs. 10 and 14, and of section 4986, R. S. Section 1114 provides that the town treasurer (or, as applied to this case, the city treasurer) shall be credited, by the county treasurer with the amount of unpaid taxes returned by him, and that from thenceforth the same shall belong to the county. 'No discrimination is made between different kinds of taxes, or the different purposes for which they are imposed. The return may include state, county, town or city, ward, school or road taxes,' or any special assessment whatever, authorized by law. These are not separately returned, but all unpaid taxes of every description on a given parcel of land are massed, and the aggregate amount of all is alone stated in, the delinquent return. Section 1113. If thfe return of the city1 treasurer, in the present case, was made in strict conformity with the statute, it does not show that it included any special assessment. To ascertain that fact,-and the amount of such assessment, the county treasurer would be compelled to search the city records. The principle of the statute is, that the county shall assume all delinquent taxes of every nature which have been legally levied in the several towns of the county, and in those municipalities therein which, like the defendant city, are under the general statute; and the county reimburses itself out of the proceeds of the sales for such delinquent taxes, or out of the lands sold, in case the county is the purchaser. The city treasurer retained in his hands, out of the taxes collected by him, [421] the amount of the grading tax, and the holder of the grading certificate was entitled to be paid that amount by the city treasurer as soon as the county treasurer gave him the proper credit. The cases relied upon by counsel to sustain the opposite view are Finney v. Oshkosh, 18 Wis., 209, and Jenks v. Racine, 50 Wis., 318; but they do not support his position. In Finney v. Oshkosh the delinquent lots were not returned to the county treasurer, but under the charter of that city were sold, by the city treasurer for the non-payment of the grading assessment. The city was the purchaser at the sale, and held the certificate when the action wai commenced. In Jenks v. Racine the lots upon which the assessment was made were returned delinquent for that and other taxes, and were sold by the county treasurer, and bid in by the county. The charter of Racine contained a provision giving the county treasurer the option to pay the city “ either in cash or in certificates of sale of the lots or parcels of land returned as delinquent.” He chose the latter course, and delivered to the city treasurer the certificates of sale. The city still held the certificates when the action was brought. The original charter of Sheboygan contained the same provision. P. & L. Laws of 1868, ch. 254, subch. XI, sec. 17. But this provision was repealed by chapter 29, Laws of 1877, secs. -6, 11 and 14, and delinquent special assessments in that city come under the general statutes. In the above cases the respective cities were held not liable for the grading assessments because the same had not been paid. The distinction between these cases and the present case, and their inapplicability thereto, is perfectly obvious. We have used the terms “ assessment” and “tax.” interchangeably, for they are so employed in the statutes which rule this case. Within the meaning of those statutes, a special assessment for the cost of grading is a tax. Dalrymple v. Milwaukee, 58 Wis., 178. ” By the Court.— The order of the circuit court sustaining the demurrer to the complaint is affirmed.