Opinion
May 5, 1960 —
June 7, 1960.
APPEAL from an order of the circuit court for Waukesha county: ELMER W. ROLLER, Circuit judge of the Second circuit, Presiding. Affirmed.
For the appellant the cause was submitted on the brief of James D'Amato of Waukesha.
For the respondent there was a brief by William G. Callow, city attorney, and oral argument by William C. Lawler, special assistant city attorney.
Action commenced by plaintiff Waukesha Development Corporation against defendant city of Waukesha for the recovery of an alleged unlawful tax paid by plaintiff to defendant on an assessment of plaintiff's real estate for the year 1957. Defendant interposed a demurrer to the complaint and from an order sustaining the demurrer, plaintiff appeals.
The complaint alleges that plaintiff corporation is the owner of certain real estate in the city of Waukesha subject to assessment. The property was assessed for the year 1957 in the total amount of $156,350 for land and building.
Plaintiff applied for a review of said assessment before the board of review for the city of Waukesha and the board reduced the assessment to $151,750 by modifying the assessment on the building.
Thereafter plaintiff petitioned the circuit court for Waukesha county for a writ of certiorari. Granting the writ, the court found jurisdictional error in the assessment and ordered it vacated.
Paragraph 7 of the complaint alleges, so far as material:
"7. That part payment of the taxes assessed against the Waukesha Development Corporation herein referred to was made under protest on January 27, 1958; that the balance of said tax was paid on July 22, 1958; . . . ."
On March 2, 1959, claim was made to the city for "return of the assessment made for the year of 1957 in the sum of $5,833.27." On March 17, 1959, said claim was refused by the city.
Paragraph 11 alleges:
"11. That said assessment was not made in accordance with sec. 70.32 of the Wisconsin statutes, but was so arbitrary and excessive so as to impose an inequitable burden upon the plaintiff taxpayer."
In paragraph 2 of a second cause of action the complaint alleges :
"2. That by reason of the payment `under protest' by the plaintiff of the illegal tax imposed by the city, which tax assessment was found to be illegal by virtue of a judgment of the circuit court in and for Waukesha county, Wisconsin, which tax assessment was vacated, the defendant, city of Waukesha, has been unjustly enriched in the sum of $6,125.41."
Sec. 74.73(1), Stats., provides, so far as material:
"Any person aggrieved by the levy and collection of any unlawful tax assessed against him may file a claim therefor against the . . . city, . . . which collected such tax in the manner prescribed by law for filing claims in other cases, and if it shall appear that the tax for which such claim was filed or any part thereof is unlawful and that all conditions prescribed by law for the recovery of illegal taxes have been complied with, the . . . common council of any city . . . may allow and the proper . . . city . . . treasurer shall pay such person the amount of such claim found to be illegal and excessive. If any . . . city . . . shall fail or refuse to allow such claim, the claimant may have and maintain an action against the same for the recovery of all money so unlawfully levied and collected of him. Every such claim shall be filed; and every action to recover any money so paid shall be brought within one year after such payment and not thereafter."
Sub. (4) of said section provides:
"No claim shall be filed and no action shall be brought under this section which is based upon an allegedly excessive assessment except that in counties with a population of under 500,000 a claim may be filed and an action may be brought if the tax is paid on the contested assessment by January 10th of the year following the year of the assessment and a claim filed within ten days thereafter and suit commenced within thirty days following the denial of the claim or within ninety days after the claim is filed if the municipalities fail to act on the claim."
The general principles as to strict compliance with the statutory procedures for the recovery of illegal taxes are set out in Straus v. Wisconsin Tax Comm. (1930), 201 Wis. 470, 229 N.W. 546.
There is no merit in appellant's argument that the one-year limitation provided in sec. 74.73(1), Stats., does not begin to run until the final instalment of a tax has been made. The statute provides that "every action to recover any money so paid shall be brought within one year after such payment and not thereafter." In this case the first payment was made under protest on January 27, 1958. This action was brought March 31, 1959. The action not having been commenced within the year limited by the statute, there can be no recovery of the first payment.
It is argued that the assessment in question was found to be unlawful by the circuit court of Waukesha county on certiorari proceedings had on January 5, 1959. Appellant refers to paragraph 6 of the complaint:
"6. That subsequent thereto, the plaintiff above named petitioned the circuit court of Waukesha county for a writ of certiorari, which writ was granted. That on January 5, 1959, Acting Circuit judge ALLEN D. YOUNG, by a written opinion, among other things, found that there was jurisdictional error in the assessment as made for 1957 and ordered the assessment vacated."
Sec. 263.33, Stats., provides that in pleading a judgment it shall not be necessary to state facts conferring jurisdiction but such judgment may be stated to have been duly given. Paragraph 6 fails to allege that any such judgment was ever entered.
The complaint alleges payment of the second instalment as follows: "That the balance of said tax was paid on July 221, 1958." The cause of action as to this payment fails because there is no allegation that it was made under protest. In State ex rel. Sheboygan v. Sheboygan County (1928), 194 Wis. 456, 461, 216 N.W. 144, this court held:
"The legislature has prescribed the remedy of the taxpayer who is compelled to pay a tax which is claimed by him to be unlawful. Under sec. 74.73 of the statutes it is the duty of the taxpayer questioning the tax to pay the same under protest and then file a claim for a refund with the municipality to which the tax was paid."
In its order sustaining the demurrer the trial court provided that plaintiff should have the opportunity to plead over as to the tax paid on July 22, 1958.
Since appellant makes no argument with respect to the allegations of the second cause of action, we deem it unnecessary to discuss them.
By the Court. — Order affirmed.