Pratt v. City of Milwaukee

Maeshall, J. Numerous errors are assigned by appellant, but they are grouped under two heads: 1. It is claimed that the property taxed was not subject to taxation at the time it was assessed; Under this assignment of error, several instances are pointed out wherein the condemnation proceedings, which form the groundwork of the tax, were not in conformity with the law governing the subject,— such as that the necessity for taking the property was not first determined by a constitutional jury; that another proceeding, previously commenced, for taking the property for the same purpose, was pending; that the resolution whereby the proceedings were instituted did not describe the land to be taken. These and other alleged irregularities or errors are mentioned to support the contention that the condemnation proceedings were void; hence that appellant’s property was not liable to taxation for any portion of the damages awarded to the owner of the real estate taken by such proceedings; and, therefore, that the statute of limitations (sec. 1210A, S. & B. Ann. Stats.) does not [661] apply, under the rule laid down in Smith v. Sherry, 54 Wis. 114. Counsel misapprehends the scope of Smith v. Sherry. It only applies to cases where there is a want of authority, db initio, of the taxing officers to put the taxing power in motion, as where property is exempt from taxation, or where the property taxed is without the taxing district. Such were the circumstances in that case. There is no question but that appellant’s lot was in the taxing district where assessed for the taxes complained of, and that it was liable for the tax in question, and that collection of such tax could be enforced if all the statutory requisites were followed necessary to legally levy the tax. Such being the case, all questions covered by the statute of limitations (sec. 1210A, referred to) are at an end, the period named in the section having expired before the commencement of this action, and the statute having been properly pleaded. Knox v. Cleveland, 13 Wis. 245. 2. Sec. 1210A, referred to, which the court held operates to set at rest all of the irregularities complained of, provides that 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 the issue of any tax certificate or tax deed, for any error or defect going to the validity of the assessment, and affecting the groundwork of the-tax, shall be commenced within one year from the date of such tax sale, and not thereafter. The term “ tax certificate,” as here used, includes a certificate issued, as in this case, on sale of land for the nonpayment of an assessment for benefits for street improvements [Dalrymple v. Milwaukee, 53 Wis. 178); but it is claimed that errors sufficient to void the certificate, which arose after the assessment was completed, are alleged in the complaint and admitted in the answer. No such errors are claimed to exist, except that the treasurer never demanded payment of the assessment, or gave notice where it might be paid, and that no opportunity was [662] given to pay the tax before the sale; also, that the certificate is not for the correct sum, in that it should be twenty-five cents larger. Certainly, such alleged irregularities do not in any way affect the equality or justice of the tax itself, and hence furnish no reason for granting to the appellant equitable relief in view of the fact that there was no offer to pay the tax, which, notwithstanding such alleged irregularities, by the force of the statute of limitations has become effectually fixed as a lien upon the property. The foregoing appears to cover all the questions that were raised on the appeal. By the Court.— The judgment of the circuit court is affirmed.