Action was commenced August 5, 1943, by the city of Wauwatosa seeking declaratory judgment determining the rights of plaintiff against the Union Free High School District of the town and city of Wauwatosa and Myrta S. Fisher, as clerk of said High School District.
The cities of Milwaukee and West Allis were impleaded, but demurrers of each were sustained. Wauwatosa v. Union Free H.S. Dist. (1947), 250 Wis. 266, 26 N.W.2d 535.
The right which plaintiff seeks to have established is to compel the defendants to levy further tax assessments against the property owners in the town of Wauwatosa to satisfy a judgment obtained by the city against the Union Free High School District for $127,045.61 in 1933, affirmed by this court in 1934. Wauwatosa v. Union Free H.S. Dist. (1934), 214 Wis. 35, 252 N.W. 351.
The money judgment was obtained for tuition of students enrolled in the city high school from the Union Free High School District in the year 1925, together with interest to the date of judgment.
In 1934, after the money judgment was affirmed, the district and the city of Wauwatosa entered into a stipulation. Pursuant to the stipulation the clerk received from the town of Wauwatosa over the three-year period approximately $20,000 which was transmitted to the city treasurer of the city of Wauwatosa. The sums so received were from taxes levied upon the tax rolls for the years 1934, 1935, and 1936.
The substance of the controversy is that in 1925, when the tuition was furnished by the city, the total valuation of property within the limits of the Union Free High School District was approximately $40,000,000, about half being in the city of Wauwatosa and half in the town of Wauwatosa. In 1933 the equalized valuation of the district was $65,375,745. Of this, property valued at $51,980,525 lay in the city and $13,395,220 in the town. In 1934 the equalized value of the district was $56,090,405, with $44,870,233 being in the city and $11,220,172 being in the town.
It is apparent that in 1925 the town constituted about fifty per cent of the value of the Union Free High School District, and the city of Wauwatosa about fifty per cent, whereas in 1933 and 1934 the city contained approximately eighty per cent of the property by value and the town only twenty per cent. The change was brought about by annexations from the town of approximately six hundred fifty-three acres by the city of Wauwatosa, sixty-four hundred acres by the city of Milwaukee, and approximately forty acres by the city of West Allis.
The plaintiff contends that the proper values to be considered in apportioning the tax between the town and city are the values existent at the time the obligation was incurred, namely, 1925.
The Union Free High School District contends that the proper basis is the values existent in 1934 when the judgment had been perfected and that in any event the city, by entering into the stipulation and by its conduct thereafter, is estopped to assert otherwise.
The trial court held that the proper basis for assessment is the 1925 valuations. Defendants appeal.
HUGHES, J.
We desire to point out that there is doubt that declaratory relief is the proper remedy, but since counsel have not raised that issue and because of the duration of this litigation and the desirability of terminating it as promptly as can be, we will decide the merits without regard to the form of action in which the questions are raised.
There is no claim that the levy of taxes in 1934, 1935, and 1936 was not made in good faith. The time for payment of the judgment was after it had been perfected. It is no more reasonable to say that the assessment should have been upon the values fixed in 1925 than it would be to say that $89,000 for tuition should be based upon the 1925 values and each year's interest accruing between 1925 and 1934 should be assessed upon the value of the tax rolls for the year in which the interest accrued.
If the parties intended some other valuation, steps should have been taken to establish such basis between the date of execution of the stipulation and acceptance by the city of payments derived from tax levies pursuant to such stipulation.
The language of the stipulation indicates that such was the contemplation of the parties.
"It is further stipulated that until it is determined how and to what effect the apportionment shall be made, the levy to be made in and for this year of 1934 shall be made and apportioned upon the basis of the assessed valuation of the property in the town of Wauwatosa and in the city of Wauwatosa respectively in each such district in and for the year 1934, subject to the adjustments and corrections, if any, as aforesaid."
That such was the intention of the parties to the stipulation is further evidenced by reference in the resolution adopted by the council of the city of Wauwatosa authorizing such stipulation:
"Whereas, said tax will be levied not only on the town of Wauwatosa but upon the city of Wauwatosa but the city of Wauwatosa will be credited with its share without collection of the tax; and,
"Whereas, said tax will be apportioned between the city of Wauwatosa and the town of Wauwatosa in proportion to their respective assessed valuations unless equalized as provided in sec. 40.32 of the Wisconsin statutes; . . ."
Sec. 40.32, Stats. 1933, in so far as material, provided:
"(1) The valuation of taxable property in the several parts of any joint school district may be equalized as herein provided. At any time between the fifteenth day of August and the fifteenth day of October, any three resident freeholders of the district may file with the clerk thereof a petition for such an equalization . . . ."
There follow provisions for a meeting at which the assessors check the valuations placed upon the property in the district.
It appears that any rights of adjustment contemplated by the stipulation were waived by permitting the time agreed upon to elapse without calling into operation the machinery for reapportionment and by acceptance of the payments made in the three-year period.
The trial court erred in concluding that the taxes collected by the Union Free High School District and paid to the city of Wauwatosa did not satisfy the judgment for tuition.
By the Court. — Judgment reversed and cause remanded with instructions to dismiss the complaint upon its merits.