Foster v. Rowe

• Decision Date: 08 May 1906
• Citation: 107 N.W. 635,128 Wis. 326
• Parties: FOSTER v. ROWE ET AL.
• Court: Wisconsin Supreme Court

128 Wis. 326

107 N.W. 635

FOSTER

v.ROWE ET AL.

Supreme Court of Wisconsin.

May 8, 1906.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by N. C. Foster against William Rowe, impleaded with Ralph Arnold, as village clerk of the village of Fairchild. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

This action was brought by a taxpayer of the village of Fairchild in Eau Claire county, on behalf of himself and other taxpayers, to restrain the clerk from carrying out upon the roll for 1901 two sums of money which he had been directed to levy upon the property of the village in pursuance of two certificates filed with the county clerk by the commissioners of equalization acting under sections 1077a and 1077b, Rev. St. 1898.

The material part of the complaint is to the effect that plaintiff is a resident, taxpayer, and owner of real estate subject to taxation in said village, and brings the action on behalf of himself and other taxpayers. That the county board in 1899 equalized and determined the aggregate valuations of the taxable property in the towns, villages, and cities of said county. That afterwards, on application of the city of Eau Claire under sections 1077a and 1077b, Rev. St. 1898, commissioners to review the equalization were appointed, and such commissioners on review deducted from the valuation of the cities of Eau Claire and Altoona certain sums and added the same to other municipalities. That the county board in November, 1900, equalized the valuations of the county, and thereafter, on application of the city of Eau Claire, commissioners were appointed, who reviewed said valuations and deducted from the valuation of the cities of Eau Claire and Altoona and added to other municipalities certain sums. That, when the commissioners who equalized the valuations for 1899 and 1900 were hearing evidence, the representatives of certain towns in said county appeared before them and offered to show that there was over $1,000,000 worth of property in the city of Eau Claire on the 1st day of May of the year under investigation, which consisted of credits due to residents from banks in said city, which had not been assessed, but entirely omitted from the assessment of that year, and which were not exempt from taxation; and that the commissioners who equalized for 1899 and 1900 refused to receive any evidence as to such property, and did not take into consideration in making their equalization any portion of said $1,000,000. That the same should have been listed for taxation in said city of Eau Claire for said years 1899 and 1900. That the county board for each of said years, in determining the valuations of the property of said city of Eau Claire, took into account said $1,000,000. That representatives of said towns also offered to show that there was a large amount of money, accounts, and credits aside from said deposits due from solvent persons to residents of said city of Eau Claire on May 1, 1899, and 1900, respectively, which had not been returned for taxation or assessed in said years, but which had been omitted from the assessment for each of said years, and which were not exempt from taxation; that the commissioners refused to receive evidence of such property, upon the ground that they had no authority to hear evidence upon or consider any property not appearing upon the assessment roll; that said commissioners did not take into consideration said moneys, accounts, and credits, but excluded the same from consideration in arriving at the relative valuation of the real and personal property in the city of Eau Claire; and that there was in fact of such property over $500,000 aside from the deposits in the banks mentioned which was subject to taxation for each of said years. That writs of certiorari were issued to review the proceedings of the commissioners for the years of 1899 and 1900, and on motions said writs were superseded and the suits dismissed. An appeal was taken from the order to the Supreme Court. State ex rel. Augusta et al. v. Losby et al., 115 Wis. 57, 90 N. W. 188. Thereafter, and immediately upon the entry of said order dismissing said suits and before relators therein could prepare their appeal papers, the county clerk of said county transmitted to the defendant, as clerk of said village, his certificate of the amount to be raised by said village as taxes and to be extended by said defendant as such town clerk against the property of the taxpayers of said town for the year 1900. That the aggregate amount of said tax so directed to be raised is $6,451.87, of which $1,234.47 is the sum growing out of the increase of the valuation of said town made by the commissioners who equalized for 1899, and $405.05 and expenses is the sum growing out of the increase made in the valuation of said town by the commissioners who equalized for the year 1900; that said sums were directed to be collected of the taxpayers to satisfy the change made by the commissioners who equalized for said years; and that the determination and certificate of said commissioners for each of said years are null and void. That of the total tax directed to be levied $969.72 is state tax, and said sums are not needed for use in carrying on the business of the government of Wisconsin or the county of Eau Claire, but are directed to be levied to be used, and would be used, if paid, for the purpose of making an adjustment between said town and city of Eau Claire in accordance with the determination of said commissioners for said two years. That the town clerk will, unless restrained, insert in the tax roll the illegal tax mentioned. That said illegal tax extended and carried out upon the tax roll will constitute clouds upon the titles to the lands of the plaintiff and other taxpayers, and the amounts will be levied upon their personal property. The clerk made default, and Rowe, a taxpayer of the city of Eau Claire, was allowed to defend, and demurred upon the following grounds: (1) Because the court had no jurisdiction of the subject of the action; (2) because plaintiff had no legal capacity to sue, in that he cannot sue on behalf of the village of Fairchild or the taxpayers thereof; (3) defect of parties plaintiff, in that the village of Fairchild was not made a party plaintiff; (4) want of facts sufficient to constitute a cause of action. From an order sustaining the demurrer this appeal was taken.

W. H. Frawley (H. B. Walmsley, of counsel), for appellant.

Wickham & Farr, for respondent.

KERWIN, J. (after stating the facts).

1. Passing the grounds of demurrer for want of jurisdiction of the court, legal capacity to sue, and defect of parties, we proceed to consider the objection that the complaint does not state facts sufficient to constitute a cause of action. This is the only ground of demurrer which we find it necessary to consider, and, if the complaint fails to state facts sufficient to constitute a cause of action, the order appealed from must be affirmed. We are clearly of the opinion that the proceedings of the board, if conducted in good faith and within its jurisdiction, are final and conclusive, and the question to be considered is whether the allegations of the complaint show such a disregard of duty as to render its acts contrary to law and void. The presumption is in favor of the regularity of the proceedings of the commissioners, and whoever attacks them must show affirmatively want of jurisdiction. State ex rel. Burnham v. Cornwall, 97 Wis. 565, 73 N. W. 63. The duties imposed are statutory. Section 1077a provides, in effect, for the appointment of three commissioners to review the determination of the county board respecting the valuations of real and personal property in the county to determine what sum upon the hundred dollars should be added to or deducted from the aggregate valuations of real or personal property, or both, as the case may be, as made by the county board in order to produce a just relation between the valuations of real or personal property, or both, in the different cities, towns, and villages in the county; but that such commissioners shall in no case increase the valuation throughout the county above the aggregate valuation made by the county board. The statute further provides for the giving of notice of the application for the appointment of commissioners, and, upon proof of the service of notice and presentation of affidavit stating the facts, the judge shall appoint three discreet freeholders, not residents or owners of real estate in the county, who shall proceed to review and examine in the manner provided, and within three months make their determination and file a certificate under their hands and seal in the office of the county clerk of the county, and that the valuation determined shall be final and conclusive. This section provides, generally, with reference to the discharge of duties, compensation, and execution of the trust reposed in them. Section 1077b, Rev. St. 1898, provides that the commissioners shall appoint a convenient time and place in such county for hearing any evidence or arguments upon the valuations under review to be offered by any taxpayer or officer of any city, village, or town, and shall attend at the time and place named, and hear any evidence or arguments offered on behalf of taxpayers, and shall sit at least five days; and, further, that the commissioners “may adjourn from day to day and from time to time, call for and examine any assessment or taxpayers or records in the county, subpœna and swear witnesses and, in general, conduct the hearing after the usual manner of a judicial hearing; but they shall hear evidence and arguments and consider the facts as to the valuation of the property of specific...