#### Bond vs. The City of Kenosha and others.

A sale of lands in the city of Kenosha for unpaid taxes of 185?, was not invalid on the ground that railroad property within said city was intentionally omitted from the tax list. *Kneelmd vs. Tits City of Mihocmhee,*15 WÍS., 454, followed. The issue of a tax deed .for lands sold for unpaid taxes, will not be restrained on the ground that a part of said taxes were illegal, if such illegal part was readily distinguishable from the part which was valid, and the plaintiff had not offered to pay the latter.

Nor will such an injunction be granted in a case where the irregularity complained of in the tax proceedings, produced no actual injustice to the plaintiff, but diminished rather than increased his taxes.

Section 48 of the charter of the city of Kenosha, (chap. 12S, Laws of 1850,) which authorizes the council, for the purpose of constructing a harbor in said city, to levy a special tax on all lands within the city subject to taxation, *not including am/ improvements made thereon,*is not in violation of sec. 1, Art. VIII of the constitution of this state, which requires that “ the rule of taxation shall be uniform; ” that provision not applying to special assessments by municipal corporations for local improvements. *Weeks v. Gity of MiVmmkee,*10 Wis., 242, followed.

The court cannot say that the enactment of such a provision in a city charter transcends the power of the legislature.

APPEAL from tbe Circuit Court for *Kenosha*County.

Action to restrain tbe defendants from executing deeds of certain lands in tbe city of Kenosba, sold in 1858 by tbe treasurer of Kenosba county, for tbe taxes of 1857. Tbe complaint alleged, in substance, that tbe sales were illegal because tbe railroad track, bridges, depot, &c., of tbe Kenosba, Bock-ford & Bock Island B. B. Co., and similar property of tbe •Milwaukee & Chicago B. B. Co., were illegally omitted from tbe assessment roll; and also because there was included in tbe sums for wbicb tbe lands in question were sold, certain amounts assessed against them as part of a tax illegally levied by tbe common council of said city for tbe construction of a“ barbor therein. Section 48 of tbe charter of tbe city of Kenosba (Laws of 1850, cb. 128) authorizes tbe city council to levy a special tax, not exceeding $10,000 annually, to construct such barbor; said tax to be levied on all lands within tbe limits of said city not exempt from taxation by tbe laws of tbe United *285States or of tbis state, *not including any improvements made thereon.*If no tax should be levied in any year for the construction of a harbor, the council were authorized to borrow, . on the credit of the city, an amount not exceeding $10,000, to be applied to the construction of such harbor; but it was provided that all taxes levied for the payment of the principal or interest of the sums so borrowed, should be levied only on the kind of property above described. Section 44 declared that no tax should be levied or money borrowed under the provisions of the preceding section, unless a majority of the voters possessed of a freehold estate, or occupying lots upon leases, on which lots they paid the taxes, who should actually vote upon the question, should first in each year determine to raise such a tax or authorize such a loan. Section 8, chap. 110, Private Laws of 1853, amendatory of the charter, re-enacts the provisions of said section 44, extending them to other special taxes. The city council, in pursuance of these provisions, borrowed and issued bonds for $5000 in 1850, and $10,000 in 1856, for the construction of said harbor, and in 1857 levied a special tax of $3000 to pay accrued interest on said bonds, and $3000 to be applied in the further construction of the harbor. In each case the question was submitted to a vote of the class of persons defined by the charter as above stated ; and the tax was assessed only against the kind of property pointed out in the charter for that purpose. The complaint alleges that a large number of “ qualified and legal voters ” were thus excluded from giving their votes upon the several questions thus submitted, and that a large amount of property in said city, to wit, of personal property and improvements upon real estate, was exempted from such special taxes; and that on these grounds the taxes were illegal. It further alleges that in the assessment roll for 1857, the plaintiff’s lots, being the lands in question in this suit, were valued at $1,900 without the improvements, and at $4,200 with the improvements. It also states that the certificates of sale of said lots do not *286show what part of the sum for which each lot was sold consisted of the tax for the harbor improvement, and what part of the taxes for other purposes. It also alleges that the plaintiff had within the city, all the time that the tax list and warrant for 1857 were in the hands of the city treasurer for collection, a sufficient amount of personal property upon which the city treasurer might have levied, to have paid all taxes legally assessed upon said lands.

The defendants answered, stating the aggregate amount of taxes for which each parcel of land described in the complaint was sold, and also stating severally the amount of the “ City Tax,” the “State, School and County Tax,” the “Harbor Tax," and the “Five per cent. Collector’s Pees,” of which the aforesaid aggregate was composed, and also the amount of “ costs, interest and charges ” added to said aggregate at the time of the sale, and making the amount for which the parcel was sold. The answer further alleged that “ upon the books of the city treasurer the various items making up said gross amounts of taxes were placed in separate columns, and the plaintiff could have ascertained and paid any item of said tax which he should have desired.” — To this answer the plaintiff demurred as insufficient to constitute a defense, and the court sustained the demurrer; from which decision the defendants appealed.

*0. 8. & F. H.*Head, for appellants,

as to the constitutionality of the provisions in the city charter relative to the assessment of the harbor tax'upon real estate alone, valued without reference to the improvements, cited *Weeks v.*Milwaukee, 10 Wis., 242 ; *Soens v. Oily of Racine,*id., 271; *Lumsden v. Cross,*id., 282; *Hill v. Higdon,*5 Ohio St., 243 ; *State ex rel Christopher vs. City of Portage,*12 Wis., 562. To the point that even if such tax was illegal, the plaintiff was not entitled to the relief sought, because he had not offered to pay the legal taxes, they cited *Libby v. Burnham,*15 Mass., 144 ; *Stetson v. Kemp-ton,*13 id., 272; *Brew v. Davis,*10 Yt., 506; *Mills v. Gleason,*11 Wis., 497; *Kelly v. Corson,*id, 1.

*287*J. J. Pettit,*for tbe respondent,

as to tbe illegality of tbe harbor tax, cited *Foster v. Oity of*Kenosha, 12 Wis., 617; *State vs.*Williams, 5 id., 308-17; *State v. Lean,*9 id., 283 ; *Weeks v. Oity of Milwaukee,*10 id., 243-70; *Soens vs. Oity of Racine,*id., 271-82; *Lumsden v. Gross,*id., 282-89. 2. Tbe absurdity of taxing real estate without reference to tbe improvements is apparent from tbe fact that the land cannot be sold without the improvements for tbe unpaid taxes. 3. The answer states that tbe various items which make up tbe gross amount of taxes appear upon tbe books of the' city treasurer. But tbe plaintiff cannot redeem by paying to tbe city treasurer, but only by paying to tbe clerk of tbe board of supervisors, on whose books those items do not appear. Tbe sale is for the aggregate, :and the certificate given is for tbe total sum and not for each separate tax assessed. R. S. 1849, cb. 15, secs. 71-99, 102 ; Gen. Laws of 1853, ch. 37, sees. 1-4; Laws of 1854, cb. 66, sec. 7 ; Laws of 1859, cb. 22, sec. 54; Pr. Laws of 1857, p. 305, sec. 9. The statute makes no provision for redeeming the land from tbe lien of the tax certificate by paying a part of tbe amount for which tbe land was sold.

*By the Oourt,*

Cole, J.

We do not understand that any other objection is taken to tbe validity of tbe tax for state, county, city and school purposes, than that tbe railroad property within the city limits was exempted in levying those taxes. This objection has been overruled in cases already decided, and need not be further considered. So, even assuming that tbe harbor tax so called was void, still tbe respondent would not be entitled to a perpetual injunction restraining tbe proceedings under tbe tax sales, except upon tbe condition that be paid the valid taxes which in equity be was bound to pay. For we have held that when tbe valid and void taxes were separable, and tbe amount of tbe former could be readily ascertained, then tbe resisting tax payer must pay those which were legal as a condition to being relieved from tbe payment of tbe *288illegal tax. *Mills vs. Johnson,*unreported, and *Hersey vs. Supervisors of Milwaukee Co.,*16 Wis., 185. And further when it appears that no actual injustice has been done, the error or irregularity complained of resulting in a diminution instead of an increase of the tax, that in such circumstances a court of equity ought not to interfere to restrain the proceedings. *Warden vs. Supervisors of La Fayette Co.,*14 Wis., 618; *Kellogg vs. City of Oshkosh,*id., 623; *Miltimore vs. Supervisors of Rock Co.,*15 id., 9. Here there can be no difficulty in determining the amount of the tax levied for state, county, city and school purposes ; and therefore the respondent ought to pay those taxes, even if he is right in the theory that the other tax is wholly void. But we are of the opinion that even the harbor tax is valid.

That tax was undoubtedly levied under section 48 of the original charter. This section authorizes the city council to levy a special tax of any sum not exceeding ten thousand dollars annually, for the purpose of constructing a harbor at the south mouth of Pike creek, said tax to be levied on all lands and town lots within the limits of the city subject to taxation *not including any improvements made thereon.*In lieu of a tax, the council was authorized to borrow money on the credit of the city in such sums as they might deem proper, not exceeding ten thousand dollars, providing the taxes levied for the payment of the principal and interest on the money borrowed should be levied on the same kind of property that the tax for the construction of the harbor was levied on. In this case the tax was levied to pay the interest borrowed for the improvement of the harbor. It appears that the respondent’s lots were improved ; and it is alleged that the assessment of the harbor tax was made upon the lots “as though divested of improvements.” But still it is insisted that the tax is illegal, because it was levied in violation of the rule of uniformity required by the constitution. But we are of the opinion that the provision of the constitution relating to uniformity in taxation does not *289apply to a tax of this character. It is more properly speaking of the nature of an “ assessment,” or special tax imposed for the purpose of municipal and local improvements. To that species of taxation we have held that the principle of uniformity did not apply. *Weeks vs. City of Milwaukee,*10 Wis., 242; *Lumsden vs. Cross,*id., 282; *State ex rel. Christopher vs. The City of Portage,*12 Wis., *562; Reeves vs. The Treasurer of Wood Co.,*8 Ohio St., 333. If, then, assessments for local improvements do not come within the purview of the section in respect to uniformity in the rule of taxation, then the m'anner and principle upon which they may be imposed rest very much in the discretion of the legislature. In this case the burden is placed upon the real estate aside from the improvements, because that property is more especially benefited by the harbor improvement. At all events this seems to have been the view taken by the legislature of the matter when it prescribed the basis upon which the harbor tax should be levied. We cannot say that it is unjust or inequitable,or,above all,that it transcends the power of the legislature over the subject. The real estate of the city derives a more direct and special benefit from the harbor improvement, and consequently the burden is laid upon that-class of property. And as the respondent’s real estate'is improved, and the tax is levied upon it “ as though divested of improvements,” it is probable that his tax was rather diminished than increased by the mode or principle of assessment upon which the tax was laid.

Eor these reasons we are of the opinion that the judgment of the circuit court must be reversed, and the cause remanded with directions to dismiss the complaint.