Jenkins v. Bd. of Supervisors of Rock County, 15 Wis. 11 (Wis.)

Cole, J.

In a number of cases wbicb have come before tbis court, it bas been decided that tbe circuit courts have jurisdiction, on application of a party aggrieved, to restrain and enjoin tbe public officers from selling and conveying real estate for a void or illegal tax; and that it was tbe duty of sucb courts to exert that jurisdiction in sucb a case. Dean vs. City of Madison, 9 Wis., 402; Delaplaine vs. City of Madison, id., 409; Knowlton vs. The Board of Supervisors of Rock County, id., 410; Foster vs. The City of Kenosha, 12 id., 616.

We do not understand that tbe counsel for tbe appellants calls in question or assails tbe correctness of tbe doctrine of these cases. He contends however that tbe complaint does not present a case for tbe exercise of tbis jurisdiction of a court of equity, or entitling tbe respondents to tbe relief granted by the judgment of tbe circuit court. Tbe main ground relied on in support of tbis position is, that it appears from tbe face of tbe complaint itself, that tbe tax assessed upon tbe premises is void and that all tbe proceedings of tbe

officers in levying and assessing tbe tax complained of were wholly illegal and unauthorized by tbe city charter. It is therefore claimed that the tax deed which might be given on the expiration of the period given by law to redeem the premises, would not create any cloud upon the title, and consequently that a court of equity must not interfere. This objection is not well taken, for this reason: the statute makes the tax deed primafacie evidence of the regularity of all the proceedings from the valuation of the land by the assessor, inclusive, up to the execution of the tax deed. City Charter, chap. 8, sec. 8, Private Laws 1853, chap. 93 ; sec. 127, chap. 18, R. S. 1858.

Now the complaint shows an entire failure on the part of the city authorities to comply with the provisions of the charter in assessing and levying the tax upon the lots therein described, for grading the streets and constructing the side walks. Erom this it is clear that the taxing officers had no power or jurisdiction whatever to levy and assess the special tax. They could only make that tax valid by substantially complying with the provisions of the charter relating to these special assessments. The complaint alleges that the three lots therein mentioned, which were platted and numbered, and were easily distinguished from each other — two of which were owned by the respondents and the third by another party — were all assessed and taxed together for work done upon three different streets, while the lots were not adjacent to the streets upon which the work was so done, and one of the lots was not adjacent to two of the streets.

It is evident that a tax thus levied and assessed was void, and it was in fact conceded to be so in the demurrer filed to the complaint. An examination of the charter will show that the street commissioners were only authorized to .cause the streets to be graded and sidewalks constructed at the expense of the adjoining lots. Secs. 4 & 5, chap. 7, of the charter. They could not improve streets at the expense of lots not adjacent thereto. Furthermore these special assessments for local improvements should be assessed against the lots

separately, so tbat tbe owner of each lot may know tbe precise amount of tax be is required to pay.

Now all tbe radical errors and defects in tbe proceedings of tbe street commissioners in levying this special tax would not appear upon tbe face of tbe tax deed, but could only be shown by evidence dehors tbat instrument. On its face probably tbe'tax deed would be all regular, and would apparently convey a good title, tbougb tbe tax wbiclr was tbe foundation of tbe deed was absolutely void. Hence tbe duty and necessity of tbe interference of a court of equity to set aside tod annul tbe proceedings and remove tbe cloud upon tbe title.

Nor can we see tbat tbe law of tbe case is changed because tbe county owns tbe tax certificates and will take tbe tax deed. Tbe respondents would be as much injured by tbe county’s bolding a tax deed upon their lots as tbougb it were held by an individual.

We are therefore of tbe opinion tbat tbe judgment of tbe circuit court setting aside tbe proceedings and enjoining the conveyance of tbe lots mentioned in the complaint, should be affirmed.

Judgment affirmed.