Fifield v. Marinette Co.

• Citation: 22 N.W. 705,62 Wis. 532
• Parties: FIFIELD v. MARINETTE CO., IMPLEADED, ETC. BEEBE v. MARINETTE CO., IMPLEADED, ETC.
• Decision Date: 03 March 1885
• Court: United States State Supreme Court of Wisconsin

62 Wis. 532

22 N.W. 705

FIFIELD

v.MARINETTE CO., IMPLEADED, ETC.

BEEBE

v.MARINETTE CO., IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed March 3, 1885.

Appeals from circuit court, Marinette county.

W. H. Webster, for respondents.

H. O. Fairchild, for appellant.

TAYLOR, J.

These actions were commenced by the respondents for the purpose of setting aside certain tax certificates issued to the county upon sales of the respondents' lands for the non-payment of taxes assessed thereon. The complaints are alike in each case. There was no appearance of the appellant in either case, and judgment was entered in each case declaring all the tax certificates null and void, canceling the same, and perpetually enjoining the county from selling, assigning, or in any manner disposing of said certificates to any person or persons whatsoever, except that they may be delivered to the clerk of said county for cancellation, and also enjoining the issuing of any tax deed or deeds on said certificates to any person or persons, and for the costs of the action. From these judgments the county appeals to this court, and alleges as error that the complaint of the plaintiff does not state facts sufficient to entitle the respondents to the judgment entered therein, and that the judgment is not supported by the facts found by the court.

The finding of fact by the court is that the facts stated in the complaint are true. The only question, therefore, upon these appeals, is whether the facts stated in the complaint entitle the plaintiffs to the relief granted by the court. The facts stated in the complaint are as follows: (1) The ownership of the lands described in the complaints by the plaintiffs; (2) the corporate character of the county; (3) that the lands were returned as delinquent for the non-payment of taxes attempted to be assessed thereon for 1881, to the county treasurer of said county, who advertised the same for sale for the non-payment of such pretended taxes, and did thereafter in form sell the same at the sale of delinquent lands in his county in May, 1882; that upon such sale the treasurer issued certificates of sale of said lands to the county, and that such certificates of sale are a cloud upon the plaintiffs' title; (4) that such certificates are absolutely illegal and void, for the reason that there was no assessment of any of the lands described in said certificates, and as a reason for making this general allegation it is further alleged that the assessment rolls for the year 1881 of the towns in which the lands are situate, and in which said lands were taxable in 1881, “were not signed by the assessor of the town whose roll it was, or in any way or manner verified by said assessor for the year 1881; that the rolls were confirmed by the respective boards of review of said towns in that condition, and adopted by said boards of review as the assessment rolls of said towns; and that all subsequent proceedings down to the sale were based upon such imperfect and incomplete assessment rolls.”

It will be seen that there is not in the complaint any allegation that the taxes levied upon the plaintiffs' lands were illegal, unequal, or unjust; nor is there any allegation that the assessment rolls, which were, in fact, made and returned by the assessors, and confirmed by the several boards of equalization, were not fairly and honestly made, nor that the property of the plaintiffs and other tax-payers was not fairly and equally assessed and valued upon such rolls. But it is claimed by the learned counsel for the respondent that the allegation that the assessment rolls were not verified by the assessors who made the same is equivalent to an allegation that the taxes levied upon the lands of the plaintiff are not only illegal, but unequal and unjust, and that a court of equity should therefore restrain their collection. It may be admitted that the allegation mentioned is equivalent to an allegation that the taxes levied and extended upon such an assessment are illegal in the sense that no valid title could be made under the tax proceedings by a sale of the plaintiffs' lands for the non-payment of such taxes, if such sale was attacked in proper time by an action at law; but, certainly, such allegation does not demonstrate that the taxes extended upon such assessment are unequal, inequitable, or unjust. This court has, through a long course of decisions, held that the circuit courts could entertain an action in equity to remove a cloud brought upon title to real estate by irregular and therefore void proceedings in the assessment and levy of the taxes, or in the sale of the lands for the non-payment thereof; but it has also uniformly held that in all such cases, unless it was clearly shown that the illegal tax was also unequal, inequitable, and unjust, relief would only be granted upon the condition that the irregular and illegal tax should be first paid.

In Hart v. Smith, 44 Wis. 217, speaking for a majority of the members of this court, I said: “It is not claimed that the allegations in the complaint bring this case within the case of Marsh v. Supervisors, 42 Wis. 502. There is no allegation that the assessment was unfair or unequal; nor is there any allegation of an omission to do any act which the law requires to be done, and which omission would tend to impair the general equality and uniformity of the assessment; nor is there any allegation showing that ‘the groundword of a valid tax is wanting.’ In fact, the allegations in this complaint admit that there was a valid assessment and a valid tax equally apportioned upon the property of the plaintiff. We do not understand that the decisions of this court in the cases of Philleo v. Hiles, 42 Wis. 527;Marsh v. Supervisors, supra; and Hersey v. Supervisors, 37 Wis. 75, were intended to or have changed the rule which was established by this court as early as the case of Mills v. Gleason, 11 Wis. 470, that a court of equity will not interfere to declare a tax invalid, and restrain its collection, unless the objections to the proceedings are such as to go to the very groundwork of the tax, and necessarily affect materially its principle, and show that it must necessarily be unjust and unequal. This rule has been adhered to and reiterated in the following cases: Warden v. Supervisors, 14 Wis. 618;Kellogg v. City of Oshkosh, Id. 623; Bond v. Kenosha, 17 Wis. 284;Miltimore v. Supervisors, 15 Wis. 9;Mitchell v. Milwaukee, 18 Wis. 92;Dean v. Gleason, 16 Wis. 1;Mills v. Johnson, 17 Wis. 598;Crane v. Janesville, 20 Wis. 305;Ballard v. City of Appleton, 26 Wis. 67.” To these cases may be added the following: Arnold v. Juneau Co. 43 Wis. 627;Whittaker v. Janesville, 33 Wis. 76;Mills v. Charleton, 29 Wis. 400; and Kaehler v. Dobberpuhl, 56 Wis. 480;S. C. 14 N. W. REP. 644.

It was further said, in the case of Hart v. Smith: “Nor do we understand that the rule, long established in courts of equity, that he who seeks equity must do equity, is qualified or abrogated in favor of a party who seeks to remove a cloud upon his title to real estate by reason of illegal proceedings taken to enforce a valid tax assessed thereon, and that such party may demand as a right, from a court of equity, that such cloud shall be removed without his doing what justice and equity demand; that is, pay the tax. None of the cases in this court recognize any such right on the part of the plaintiff, and we think no such right exists. It would be a gross impeachment of the power of a court of equity to deny it the right to demand of its suitors good faith and common honesty before it shall be compelled to grant them any relief.” What was said in the case of Hart v. Smith was reiterated and approved in Kaehler v. Dobberpuhl, 56 Wis. 483,S. C. 14 N. W. REP. 644; and on page 486 it is said: “When a tax-payer undertakes to stop the officers of the law from collecting a tax charged against his property, by a proceeding in equity, he should be required to demonstrate by his complaint that his property is not legally or equitably chargeable therewith.” In this case the plaintiff sought to impeach, by her complaint, the justice and equity of a reassessed tax, and this court said: “Such reassessment must be deemed a proper and just reassessment until impeached by evidence tending to show that it was inequitable and unjust. The tax sale of 1870 was set aside because the town assessor had made an imperfect verification of his assessment, and for no other reason. This irregularity does not, we think, impeach the justice or equity of the tax assessed upon the plaintiff's land, and comes within the provisions of said section 1087, which authorizes a reassessment when the tax deed or tax sale is set aside.”

The foregoing decisions of this court ought to settle the question in this state that a court of equity will not set aside or enjoin the collection of a tax for mere irregularities in the tax proceeding, except upon the condition that the taxes justly chargeable to the property of the plaintiff are first paid or tendered in all cases where such taxes are ascertainable.

In the case at bar there is no complaint made that any illegal or unjust tax has been ordered to be levied upon the property of the plaintiff; nor are there any sufficient allegations in the complaints showing that such legal taxes ordered to be levied on the property of the towns in which their lands are situate, have not been fairly and justly apportioned upon the real and personal property subject to taxation in such towns. Why, then, should a court of equity relieve the plaintiff from the payment of such taxes? The only reason urged for so doing is that the assessor omitted to verify his assessment roll. Whether such omission occurred through mere inadvertence, or whether it was done designedly, does not appear from the complaint. But it is urged by the learned counsel for the respondents that the omission of the assessor to verify his assessment roll...