Hayden v. Douglas County

SEAMAN, Circuit Judge (after stating the facts as above). The decree appealed from dismisses the appellants’ bill, as against the county of Douglas, on demurrer for want of equity, and no issue arises upon the equities stated for relief against the city of Superior. Equitable relief, in any form is denied as to the appellee county, and the single question on this appeal is whether facts are averred which authorize joinder of the county, for the relief sought, by way of accounting or otherwise. Rights of the appellants, as holders óf improvement bonds issued by the city of Superior under the provisions of its charters, are clearly stated in the bill, together with defaults in payment for which remedy in some form is needful. Complications of-fact in respect of the special assessments required by the charter to be levied from year to year upon the lots embraced in the improvement, to be collected and paid upon .such bonds in annual installments, are also stated, not remediable at law, and -without equitable relief no adequate -remedy appears for enforcement of' the municipal obligations so incurred. Whether default in payment of the bonds has been due to. confusion in the statutory provisions, either of the charter or general statute, or to neglect or mistake on the part of one or the other municipality in their administration, are questions raised by the bill, and equitable jurisdiction may well be invoked for their solution.’ The difficulties which have been encountered by the holders of improvement bonds of the issue and class described in the bill, in efforts for their collection, are distinctly averred in the bill; and that, for one or another of these causes, much litigation on their behalf has resulted either in defeat or insufficient recovery, is exemplified in prior cases brought to our attention on this hearing, including several reviewed by this court, viz.: King v. City of Superior, 54 C. C. A. 499, 117 Fed. 113; Jewell v. City of Superior, 67 C. C. A. 623, 135 Fed. 19; White River Sav. Bank v. City of Superior, and other cases heard therewith, 148 Fed. 1, 10, 78 C. C. A. 169. The improvement bonds described in this bill were issued under the provisions of chapter 16 of the charter of 1889 for the city of Superior (chapter 152, p. 349, Laws Wis. 1889), which are summarized with the opinion of this court in White River Sav. Bank v. City of Superior, supra. ■ In reference to those provisions, we deem it sufficient to remark that they plainly intend and require (section 161) that the bonds so issued for street improvement shall be secured by special assessments, made by the city upon lot's named, for their payment; (section 163)' that one-fifth of the amount assessed (with interest) is to “be extended on the tax roll as a special tax on said property,” and “when collected the same shall be credited to the fund against which payments on said bonds are charged,” and thus to continue annually until paid up; and (section 162) that payments upon the bonds therefrom are to be made by the city treasurer. The intention, therefore, is unmistakable, as stated in the opinion of Judge Jenkins; speaking for this [27] court, in Jewell v. City of Superior, supra, that “these special assessments are private property and belong to the owners of the bonds, not to the municipality,” with the city made “trustee for collection.” Were the special assessments all collected by the city upon the tax roll, none of the complications mentioned in the bill could arise, and the way would be clear to enforce payment. But it is averred that they were mainly, if not wholly, uncollected under the tax roll, and were thus returned to the county treasurer as delinquent taxes, pursuant to section 1114, St. 1898 — a course directed by section 119 of the charter, in reference generally to “delinquent taxes.” With no express provision for the city to enforce these assessments directly, this general statutory means or agency was necessarily adopted, as all authority and machinery for the ultimate enforcement of delinquent taxes of cities and towns is vested in the county, under the general plan. Taxes levied for state and comity purposes are apportioned to cities and towns and payable by each to the county; and section 1114 provides that the amount of the delinquent taxes returned shall be “credited” to each respectively by the county treasurer thereupon; that the credit so given shall apply upon such apportionment payable to the county, and that the “excess, when collected (with the interest and charges thereon) shall be returned to the town, city or village treasurer for the use of the town, city or village.” The bill avers, in substance, that returns of delinquent taxes which included these special assessments were so made by the city and credited to it by the county; that large amounts (specified) have been received by the city thereupon, for such assessments, which have not been paid upon the bonds; that the county has in fact' collected other large amounts (specified) on account of such assessments which have not been applied in payment thereof; that no separation was made and no separate account kept by the county between the special assessment's and general taxes, but all appear “as one lump sum”; that, in reference to the excess of delinquent taxes returned over the amount payable to the county, “no attention was paid to what the balance consisted of or of the nature of the tax”; and that “there is nothing to show from the books” of the county “whether any portion of the assessments collected on account of the improvement's in question have actually been paid to the city treasurer, or whether the moneys have been used for other purposes.” Notwithstanding the confusion and difficulty thus averred, and the property right of the appellants (as above mentioned) to their pro rata share of all sums collected upon the special assessments, the decree refuses equitable cognizance for any form of accountability on the part of the county; and the contentions against joinder of the county, for such complete relief as equity may thus afford, are in substance: (L) That no liability to the bondholders for these assessments is placed by either statute upon the county, nor is such liability incurred by it, when collections are made, for the reason that section 1114 prescribes: “All taxes so returned as delinquent shall belong to the comity;” and (2) that no fact is averred in the bill of fraud, neglect, or violation of law on the part o f the comity to make it chargeable for any form of equitable relief. It may well be conceded [28] that these propositions, if tenable, would not only defeat recovery at law against the county, but prevent its joinder in any proceeding at law to that' end. Whether either or all of them, united as objections to this bill in equity, can prevent such joinder for the relief sought, is quite another question; and each is considered in reference to its bearing on that inquiry. Under the charter of the city two kinds of obligation are provided for payment of contracts for street improvements — both resting on like special assessments against lots embraced therein, which are separately levied and entered upon the tax roll for such purpose, made liens upon such lots and directly payable by the city treasurer (primarily) to the holder out of collections therefor coming to his hands— the one form issued as an “improvement certificate,” charged against individual lots (section 155) and payable from a present assessment, and the other as an “improvement bond,” made a charge upon all lots embraced in the improvement (section 159) and payable out of successive partial assessments against each lot so included. ■ The only substantial distinction between them in the method of payment appears in section 156 of the charter, which provides, in reference to the certificates, “that all moneys cbllected by the city treasurer and all moneys. collected by the county treasurer or county clerk, on account of such taxes, shall be delivered or paid to the owner of the same, on demand, upon surrender of such certificate”; while the city treasurer alone is named in section 162, directing payment of installments of interest and principal due upon the improvement bonds. In State ex rel. Donnelly v. Hobe, 106 Wis. 411, 413, 82 N. W. 336,. the Supreme Court of the state construed these provisions for special assessments — as renewed in the revised city charter of 1891 (Daws 1891, p. 774, c. 124) — in an instructive opinion, resulting in the issuance of a peremptory writ of mandamus against the county treasurer to pay over special assessments collected by him as delinquent taxes-to the holder of improvement certificates issued therefor. The rule' of direct liability thus applied, however,’ is referable to the above-mentioned provision for such certificates (section 156 of the charter,, which appears in the charter of 1891 as section 129), and not applicable, in the light of such reference, to authorize like rule of liability in favor of the present bondholder. Nor is the decision of this court in Jewell v. City of Superior, supra, in any sense, authority for recovery by the bondholder, in direct suit against the county, for assessments collected by its treasurer or clerk, as no such issue was there involved; and the excerpt from the opinion in that case, quoted by counsel for the appellants as thus operative, appears in a mere ar-guendo reference to the assumed general rule of the Hobe Case — with the above-mentioned distinction between certificates and bonds in the method of payment, after assessments were returned as delinquent, neither called to attention nor involved in the Jewell decision — and is plainly inapplicable to charge the county with direct liability. The averments of this bill appear to be framed for relief upon one or the other of these theories for which the appellants contend: (1) That the city of Superior is liable for the entire amount of assessments [29] returned as delinquent, credited by the county thereupon, if no liability is incurred by the county for such assessments, when collected in any form; (2) that, treating the county as the statutory agency for collection of the delinquent assessments, with the credit to the city a mere “matter of bookkeeping” — as held in the Jewell Case, supra— the county becomes directly liable to the bondholder for payment to him on collection; and, if both of these propositions of direct liability are overruled, (3) that the county is accountable to the city for all such collections, to be paid over to it for the benefit of the lienholders, so that the appellants are entitled to equitable relief against the county as well under the circumstances averred. We are of opinion that the first-mentioned contention was rightly overruled in the Jewell Case, supra, and is untenable, as well, under the present averments; and that no sanction appears under either statute for requiring the county to pay the amounts collected upon assessments directly to the bondholder. The remaining proposition, however, that the county may be required to account for such collections and pay them over to make up the trust fund provided by the charter for that purpose, rests upon equities which entitle the bondholders to such relief, unless the terms of the general statute (section 1114), providing that taxes “returned as delinquent shall belong to the county,” must be construed to be destructive of his charter lien upon the assessments, as the appellee county (in effect) contends. The test of equitable cognizance, therefore, hinges on the meaning of this general provision, read in the light of the special charter provisions applicable as well to the delinquent returns. That the special assessments in question are levied and pledged by the charter in favor of the lienholders, as private property belonging to such holders, “not to the municipality,” and were not within the above-mentioned provision for taxes returned as delinquent to belong to the county, was expressly held by this court in the Jewell Case, supra; and we believe such ruling to be in conformity with the construction of these charter provisions and general statute adopted by the state Supreme Court in the Hobe Case, supra. While it is true (as before stated) that the rights there involved were those of a certificate holder, the various charter provisions for making the assessments and conferring ownership of the lien were the same under which (in the alternative form) these bonds were issued, and their interpretation became needful to ascertain the property rights of either lien-holder in the assessments. The opinion is exhaustive and well considered, distinguishing such assessments from the taxes mentioned in section 1114 as owned by the county when returned delinquent, and establishes the rule, as we believe, for like distinction in the case at bar. As there stated: “A general provision, covering a subject as a whole, must be deemed to have been intended as subordinate to a particular provision relating to a particular element included in such subject. Again, when there is a particular clause of an act, or a special act, and a general clause or act the language of which may be reasonably, though not necessarily, construed to include the subject of the particular clause or act, the presumption Is that the latter was intended as an exception. Mason v. Ashland, 98 Wis. 540, 74 N. [30] W. 357.” Also, “Harmony, not confusion, is to be sought for by statutory construction.” The earlier case, however, of Sheboygan County v. City of Sheboygan, 54 Wis. 415, 11 N. W. 598, is relied upon as controlling authority for the broad and independent construction of the general provision for which the appellee contends. We do not understand that case to be applicable, under the issue there involved for decision, irrespective of the question as to its weight with the Hobe Case standing as a direct and final interpretation. In Sheboygan v. Sheboygan, the county sued the city to recover the amount of “a special assessment for grading” which was returned delinquent by the city under section 1114, St. 1898, stating these facts alone for its complaint: That such assessment was so returned to the county treasurer with the delinquent list and “credited to the” city; was then “charged back” by order of the county board, and the city refused payment. General demurrer td this complaint ' was sustained below, and the only question for review was whether a cause of action was stated. The opinion states that “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”; and that “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” for such improper credit. Thus no other question arose, and the solution was plain, as there decided— under a charter provision that “delinquent special assessments in that city come under the general statute” — that such return was rightly made and- credited, as within the purpose of section 1114. Other comments in the opinion upon the terms of section 1114 are without force, as we believe, under the present issue. We are of opinion, therefore, that the interest of the appellants, as bondholders, under the averments of the bill, in the special assessments referred to, is that of ownership in the liens created pursuant to the charter provisions; that it continues unimpaired throughout all proceedings for return of delinquent taxes to the county treasurer, inclusive of the credit thereupon to the city treasurer, and for enforcement arid collection of delinquent taxes on the part of the county; that when collected by county treasurer or clerk such special assessments are to be paid over to the city treasurer to be applied as directed by the charter; and that the averments authorize joinder of the county as a party for equitable relief to that end. The objections urged that no fraudulent conduct or violation of law appears on the part of the county, and that the appellants cannot have a recovery against the county for any collections made, are without force for denial of such joinder and relief in equity, however insuperable under the rigid rules of procedure at law. The doctrines of equity, with respect to parties and relief, differ from those at common law “in their fundamental conceptions, in their practical operation, in their adaptability to circumstances, and in their results upon the rights and duties of litigants”; and thus the rights and liabilities of all parties interested in the subject-matter are properly within the scope of equitable adjúst31 meut and adjudication between all interests. 1 Pomeroy’s Eq. Jur. §§ 113, 114, 115. One of the well-settled grounds for invoking such jurisdiction appears in the averments of difficulty and confusion in the records and accounts of the county in reference to the assessments. The decree of the Circuit Court is reversed, accordingly, with direction to overrule the demurrer and proceed further consistently with this opinion.