Burkhardt Milling & Electric Power Co. v. City of Hudson

KekwiN, J. 1. It is contended by-appellant that the action cannot be maintained because it does not appear that the plaintiff paid more taxes than it was equitably bound to pay. Even if it be conceded that it is established that the plaintiff paid more taxes in the defendant district than the just portion of the whole tax due to defendant, it does not appear that it paid more than it otherwise would have paid. If the rate of taxation were the same in the defendant city as in the other three districts, the plaintiff cannot complain, because the improper distribution of the whole valuation between the different districts could not prejudice the plaintiff or increase the whole amount of its tax. If the valuation in defendant city were $16,409 too high, the aggregate valuation in the other three districts would be that amount lower, since it is stipulated that the aggregate amount of property in all the districts is $75,000. The rate in each district is alleged in the complaint. Rut these allegations are denied by the answer. The rate in defendant city is established in' the case, but the rate in the other districts is not. So we are unable to say from the record before us what the rate in the other districts is. If it is the same as in defendant city the plaintiff has made no case. True, it is alleged in the complaint that the rate in the other districts is about one third of the rate in defendant city, but there is no proof of this fact. The statute, sec. 1164, under which this action is brought provides that no claim shall be allowed and no action main [367] tained unless it shall appear that tbe plaintiff has paid more than its equitable share of the taxes. It does not appear from the record in the instant case that the plaintiff has paid more than its equitable share of the taxes. 2. It is further contended by appellant that the other assessment districts should have been made parties to the action. Counsel for respondent answers this contention by saying that the demurrer was not directed to defect of parties and therefore did not reach the question, and that the objection was raised in no other manner. But the objection that there was defect of parties was raised by the answer and that was sufficient under sec. 2654, Stats. We think the other districts, namely, village of North Hudson, town of Hudson, and town of St. Joseph, were proper parties to the action. The bringing in of all parties interested in a controversy in order to avoid circuity of action under the statutes of this state and decisions of this court is favored. Secs. 2610, 2656a, Stats.; Washburn v. Lee, 128 Wis. 312, 320, 107 N. W. 649; Hurley v. Walter, 129 Wis. 508, 511, 109 N. W. 558. The court has a-broad discretionary power to bring in parties. Schmuhl v. Milwaukee E. R. & L. Co. 156 Wis. 585, 146 N. W. 787; Kresge v. Maryland C. Co. 154 Wis. 627, 143 N. W. 668; Hemenway v. Beecher, 139 Wis. 399, 402, 121 N. W. 150; Swanby v. Northern State Bank, 150 Wis. 572, 137 N. W. 763. We think all the districts should be made parties in the present action and thus dispose of the whole controversy. It follows from what has been said that the judgment must be reversed. 3. The important question in the case, however, is the apportionment between the four districts, and this question should be decided so that upon a new trial all questions may be settled and further litigation avoided. It appears from the undisputed facts and the court below found:. “That on the 20th day of June, 1913, the four assessors of [368] said four assessment districts duly met at tbe office of tbe city clerk in said city of Hudson for tbe purpose of assessing said electric light and power plant of said plaintiff for purposes of taxation and found and placed tbe total assessed valuation of said property at $15,000 and valued and assessed tbe same at that amount. “That in apportioning said property among tbe four said assessment districts they valued tbe property located in tbe city of Hudson at $14,580, that amoixnt being 19.44 per cent, of tbe total assessed valuation of $75,000. They found that tbe total business transacted by tbe company for tbe year 1912 was $20,262, and that is the correct amount of tbe business transacted by tbe company in all four districts; and it was found by said assessors and tbe court here finds that $19,363 of said business was transacted in tbe city of Hudson, and that said amount of business so transacted in tbe city of Hudson was 95.56 per cent, of tbe total business transacted by said company. That said assessors added tbe percentage of property in tbe city of Hudson to tbe percentage of business transacted in tbe city of Hudsonj that is, they added said 19.44 per cent, to said 95.56 per cent., which gave a total of 115 per cent, of both property and business in tbe city of Hudson. ■ They divided that, amount, to wit, 115 per cent., by two, which gave 57.5 per cent., and apportioned to tbe city of Hudson 57.5 per cent, of tbe assessed valuation of $75,000, making an assessed valuation apportioned by them to tbe city of Hudson of $43,132, and the assessors of said city of Hudson placed upon tbe assessment roll of said city of Hudson against said plaintiff on account of its said electric light and power plant an assessed valuation of $43,132, which assessment was arrived at by the method above stated. “That on said assessed valuation there was placed upon tbe tax roll of tbe city of Hudson for said year 1913, against said plaintiff company, a tax amounting to $1,401.79, and on tbe 15th day of January, 1914, said assessed valuation and said tax based thereon appeared upon tbe tax roll in tbe hands of tbe city treasurer of said city (is a personal property tax against said plaintiff company because of its said electric light and power plant.” It is clear that tbe method of apportionment adopted by [369] the assessors was not in compliance with the statute. Sec. 103Yc, Stats. 1911, is as follows: “If the property or business of any such person, company or corporation extends into two or more districts the assessors of all the assessment districts in which any part of such property is located shall meet and assess all the property of such person, company or corporation, and extend on the assessment rolls of their respective districts the proportion of the assessed valuation thereof properly belonging to each. Such proportion shall be determined by the ratio which the property located and the business transacted in each district bears to the total property and business of such person, company or corporation. The amount so assessed shall be subject to the same tax rate as other property in said district.” The assessors found that the total property of the plaintiff located in the city of Hudson was $14,580, that the total business transacted by the company in the city of Hudson was $19,363, aggregating $33,943 total property located and business done in the city of Hudson. The assessors also found that the total assessed valuation of the plaintiff’s property in the four districts was $15,000 and the total business done $20,262, making a total of property and business in the four districts of $95,262. Under the method of apportionment by the plain provisions of the statute the ratio should be obtained as follows: $33,943 the numerator and $95,262 the denominator of the fractional part of the total assessed valuation, $Y5,000, which should be apportioned to the city of Hudson. This fraction reduced to a decimal gives 35.63 per cent, of the total assessed valuation which should be apportioned to the city of Hudson. Thirty-five and sixty-three hundredths per cent, of $Y5,000 gives the amount which should be assessed to the city of Hudson as $26,122.50. The assessors placed the amount at $43,132, an excess of about $16,409. It was stipulated and found that the rate of taxation in the city of Hudson for the year 1913 was thirty-two and one-half mills on the dollar. Thirty-two and one-half mills of the ex [370] cess of assessment in tbe city of Hudson would amount to about $533. Obviously tbe plaintiff did not consider tbat it was entitled to tbis amount because judgmenj; was taken for only $330.26. All tbe facts were admitted except tbe rate of taxation in tbe three districts not parties to tbe action. Tbe material question here, therefore, is tbe proper method of apportionment, and tbe court is of opinion tbat tbe method adopted by the court below was tbe correct method and in accordance with tbe statute. Tbe method adopted by tbe assessors does not determine tbe ratio which tbe property located and tbe business transacted in tbe city of Hudson bears to tbe whole property and business done. Tbe language of tbe statute, “by tbe ratio which tbe property located and tbe business transacted in each district bears to tbe total property and business,” is plain and unambiguous, and tbe court cannot disregard it. It follows from what has been said tbat on the main proposition, namely, tbe apportionment, tbe judgment of tbe court below was correct, but because of other errors committed tbe judgment must be reversed and tbe other districts brought in by proper amendment and made parties to tbe action, to tbe end tbat their rights may be determined and such judgment rendered as shall settle all tbe rights of tbe four districts involved in tbe matter. By the Court. — Tbe judgment of tbe court below is reversed, and tbe cause remanded for further proceedings according to law and in accordance with tbis opinion. Tbe appellant to recover costs in tbis court.