Opinion
January 10, 1951 —
February 6, 1951.
APPEAL from a judgment of the circuit court for Ozaukee county: MILTON L. MEISTER, Circuit Judge. Reversed.
E. W. Van Dyke of Milwaukee, and P. F. Leuch, in pro. per., for the appellant.
For the respondents there was a brief by Kittsley Hurth of Cedarburg, and Gerold Huiras, of Port Washington, and oral argument by Harold J. Kittsley.
Upon the petition of appellant an alternative writ of mandamus was issued December 22, 1949. On January 2, 1950, respondents moved to quash the writ, which motion was granted June 6, 1950. From the judgment quashing the writ petitioner appeals.
The petition was for a writ of mandamus to compel the respondent, city clerk of the city of Cedarburg, to place upon the tax roll for 1949 a special assessment against property of two taxpayers for installation of sewers. It alleged, among other things, the adoption of a city ordinance requiring assessment at certain amounts per linear foot against property adjacent to any sewer or water main; the installation of improvements through property of named individuals located within the city limits; and that such property was platted.
The motion to quash was based upon two grounds: (1) That the petition failed to state a cause of action: (2) that the court had no jurisdiction, presumably on the theory that the tax roll having left the hands of the clerk, he could not be compelled by mandamus to levy assessment. It was supported by affidavits stating that the tax roll had passed out of the control of the city clerk December 20, 1949; that the property against which the petitioner sought to compel assessment was unplatted; that such property owners gained no benefit but that they had given the city an easement to carry sewer water from higher land within the city to avoid the need of installing a pumping station.
Petitioner moved for permission to amend his petition to seek mandamus to compel the levy to be made on the 1950 tax roll.
The trial court filed no opinion, so we are unable to ascertain upon what basis the motion to quash was granted. An examination of the record shows that the petition states a cause of action.
"The motion [to quash] is in the nature of a demurrer, and ordinarily is dependent for its effectiveness on grounds stated in the motion. It cannot be aided by allegations of fact, and, like a demurrer, admits all facts which are well pleaded for the purpose of the motion, and it raises the issue whether any ground for relief is stated." 55 C. J. S., Mandamus, p. 525, sec. 290.
The affidavits and counteraffidavits accompanying the motion indicate that there are issues to be tried. It was therefore error to quash the writ. Since the question of whether a tax should be levied rests upon controverted facts, the court should allow an amendment of the petition to seek placement of the tax upon the next tax roll, and proceed with the litigation.
By the Court. — Judgment reversed and cause remanded with directions to deny the motion to quash and for further proceedings in accordance with this opinion.
GEHL, J., took no part.