Field v. City of Milwaukee

Marshall, J. Unless a question of practice presently to-be mentioned requires a different result, this cause is ruled in respondent’s favor by the decision in the case mentioned in the statement. Sec. 1164, Stats., empowers common councils to refund taxes illegally assessed and paid, contingent upon “all conditions prescribed by law for the recovery of illegal taxes’*’ [395] having “been complied with.” Sub. (4), sec. 1087ro — 22, makes the section aforesaid applicable to income taxes conditioned upon the written approval “of the assessor of incomes who made the assessment or of the tax commission in the case of assessments made by it, specifying the defect in the assessment or tax proceeding and the amount of taxable income which should have been assessed and the amount of the taxes justly chargeable thereto.” It seems plain from the foregoing that the common council of the city of Milwaukee could not, properly, have refunded the taxes for want of the approval mentioned. It is insisted on behalf of appellant that the statutory remedy by appeal is exclusive and that the court should have dismissed the action under the rule in State ex rel. Superior v. Duluth St. R. Co. 153 Wis. 650, 142 N. W. 184, and similar cases. Where a statutory remedy is provided for the enforce-men of a common-law right without expressly, or by necessary inference, interfering with freedom to resort to the old remedy, the new one is cumulative unless the court, on grounds of public policy, sees fit to make its activity in that field more or less contingent upon the new remedy being exhausted. That is the logic of State ex rel. Superior v. Duluth St. R. Co., supra. We are unable to discover any clear legislative attempt to make the statutory remedy in question exclusive. Moreover the point is expressly ruled in respondent’s favor by Horlick v. Mount Pleasant, ante, p. 366, 154 N. W. 375. It was there held that sec. 1087m — 18 prescribes the condition precedent to the right to bring such an action as this, and that the specification thereof, by a familiar rule of construction, indicates that the legislative purpose was to make that the sole condition. Such condition was satisfied in this case. By the Court. — The judgment is affirmed.