Summary
In Garfield Investment Co. v. Town of Oconomowoc (1950), 257 Wis. 98, 42 N.W.2d 361, the town had made extensive repairs to a private road for many years, sometimes using town equipment and sometimes by private contractor.
Summary of this case from 61 Op. Att'y Gen. 304Opinion
April 4, 1950 —
May 2, 1950.
APPEAL from a judgment of the circuit court for Waukesha county: EDWARD J. GEHL, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of Alvin G. Brendemuehl of Oconomowoc, and for the respondent on the brief of Clayton A. Cramer and Robert T. McGraw, both of Waukesha.
Plaintiff commenced an action to recover $931.54 paid under protest to the town of Oconomowoc as an alleged illegal assessment of a road tax. From a summary judgment in favor of the plaintiff, defendant appeals.
The principal facts are not in dispute. The plaintiff is one of the owners of property which abuts upon a private road known as Road "J." During the past twenty years the property owners have arranged for the maintenance and repair of the road, sometimes by private contractors and sometimes with town equipment. In 1946 a majority of abutting owners, not including the plaintiff, petitioned the town board to repair the road. The town made extensive repairs at a cost of $9,674.71, and on December 3, 1946, passed a motion that that amount be levied for repairs to Road "J" "as their [the owners'] petition has requested." The petition which had been signed contained the language, "We hereby agree and bind ourselves to pay, our and each of our proportionate share of the cost of such repairs . . . either in cash or through special assessment against our respective parcels of real estate as your board may determine." The board determined that $931.54 was the share owing from the plaintiff, and levied a special assessment for this amount.
The town concedes that there can be no legal tax levy for expenditures made by it on a private roadway, but seeks to defend against the plaintiff's action on the ground that it was merely collection of a debt by the town which the plaintiff was estopped to deny because it had received the benefits of the expenditures made by the town and had participated in similar transactions in previous years.
The town has no commercial status, and can obtain money from its citizens only by taxation. The levy in this case was an attempted levy of a special assessment and when the plaintiff paid it under protest, it paid it as a taxpayer, and is now entitled to maintain this action to recover it. The defense offered being sham, the trial court properly entered summary judgment in the plaintiff's favor.
By the Court. — Judgment affirmed.
GEHL, J., took no part.