Plumer v. Bd. of Supervisors of Marathon Cnty.

• Decision Date: 31 January 1879
• Citation: 46 Wis. 163,50 N.W. 416
• Parties: PLUMER v. BOARD OF SUPERVISORS OF MARATHON COUNTY ET AL.
• Court: Wisconsin Supreme Court

46 Wis. 163

50 N.W. 416

PLUMER

v.BOARD OF SUPERVISORS OF MARATHON COUNTY ET AL.¹

Supreme Court of Wisconsin.

Jan. Term, 1879.

Appeal from circuit court, Marathon county. Affirmed.

Action by Plumer against the board of supervisors of Marathon county. The complaint set up six causes of action. The first, second and third were to avoid taxes assessed in the years 1875, 1876, 1877, respectively, on plaintiff's property in the city of Wausau, on the ground that no valid assessments were made of the property in those years; the fourth was to avoid bonds issued by a school-district in the city of Wausau, and also to avoid taxes assessed on plaintiff's property for the three years mentioned, on the ground that a certain amount of such taxes, undistinguishable from the whole, were assessed for the payment of these bonds; the fifth was to enjoin the application of county orders in the possession of the common council of Wausau to the payment of these bonds; and the sixth was to avoid the taxes above mentioned as including an illegal tax for local improvements in the city of Wausau, which could not be distinguished in the whole amount from those assessed for other purposes. By the answer issues were raised on all the causes of action. Plaintiff introduced the assessment rolls in the city of Wausau for the years 1875, 1876, 1877, with other evidence to sustain his first three causes of action, but, on defendants' objection, the assessors, who were called as witnesses, were not allowed to testify to any matters tending to impeach their respective assessment rolls and the certificates thereto attached. Defendant's objection to the introduction of any evidence as to the value of any property other than that of plaintiff was overruled. After plaintiff's evidence was in, defendants moved for a nonsuit on each cause of action separately, on the ground that there was “no proof that the assessor for the years 1875 and 1876 did designedly and fraudulently assess the property alleged in the complaint;” and that “the mere fact that the assessor assessed property at less than its true value is not sufficient to warrant the maintaining of an injunctional order in a proceeding of this nature; and also for failure of proof.” On the denial of this motion defendants moved that the proceedings be stayed, under Laws Wis. c. 334, § 5, until there could be a reassessment of the property, and the court reserved the matter for its consideration. Defendants' motion for a nonsuit, generally, was denied. The court found that the assessments for the first two years were “knowingly and fraudulently made on a basis of one-half and one-third of the actual cash value of all the taxable property, both real and personal, of said city of Wausau, and in no case at its full value, or the price which the owners would have been willing to take for the same had they been desirous of selling.” It was further found that, after the assessment of 1876, the board of equalization knowingly, intentionally, and fraudulently changed said assessment, arbitrarily and of their own motion, by reducing the same in some cases one-half, and in some cases one-third, for the purpose of establishing an assessment at the rate of one-half and one-third the actual cash value of all the property, both real and personal, of said city, liable to taxation. As conclusions of law the court held the assessments of all the property in the city, including plaintiff's, for the years mentioned, void, as also the sales of plaintiff's lands for the taxes assessed, and judgment was entered annulling them. From this judgment defendants appeal.William F. Vilas and Chas. F. Crosby, for appellants.

Finch & Barber and Carl H. Mueller, for respondent.

RYAN, C. J.

I. The record in this appeal presents several peculiarities apparently overlooked in the court below, and on which no point is made in this court. There is one, however, on which the appellants claim that they are entitled to a reversal of the judgment. The complaint contained six separate causes of action. On the fifth and sixth no evidence whatever appears to have been introduced. The fourth became immaterial to the judgment, upon the denial of the motion for a nonsuit on the first three. The appellants moved for a nonsuit upon each of the causes of action, but assigned special grounds for the motion applicable to the first three causes of action only. The motion was overruled, and thenceforth the last three causes of action do not again appear in the record; the findings of the court, the exceptions taken by the appellants, and the judgment, wholly ignoring them. It is now assigned for error that the findings and judgment do not dispose of these three causes of action. But the court cannot hold this to be good ground of reversal, under the circumstances. It is quite apparent in the record that both the parties and the learned judge of the court below regarded the last three causes of action as out of the cause after the respondenthad rested his case, and until judgment. If the appellants had intended to rely on this ground here, they were bound, under the circumstances, in justice to the respondent and in fairness to the court below, to have called attention to it below, by motion or suggestion, so that the respondent would have had an opportunity of discontinuing the last three causes of action, or that the learned judge of the court below might have covered them in his findings and in the judgment. The peculiarity of the record in this respect makes it too late to raise the point for the first time in this court.

II. It was conceded at the bar that the nonsuit was properly denied on the second cause of action; but it was claimed that the evidence given was insufficient to support the first and third causes, within the rule of Dean v. Gleason, 16 Wis. 1, and Smith v. Smith, 19 Wis. 615, recognized in all the cases. The court cannot assent to this view. The respondent appears to have given sufficient evidence, prima facie, to impeach the whole of the assessment rolls. The evidence tended to establish more than mistakes,--tended to establish bad faith in the assessments; and this view is accepted with the greater confidence because the appellants made no attempt to rebut the case of the respondent. If the assessment rolls could be defended, the means of defense were peculiarly in their power. It should not be overlooked that, as the law now stands, an assessor is an incompetent witness to impeach, but a competent witness to support, his own assessment roll; and when the assessment rolls were impeached by such evidence as the respondent gave, of the only character which can now be generally given, the failure of the appellants to call the asssesors, or to account for not calling them, is not a little significant. It must be held that nonsuit was properly denied.

III. When the motion for a nonsuit was overruled, the appellants moved to stay proceedings under section 5, c. 334, of 1878, now embodied in section 1210 b, Rev. St., until a reassessment could be made under that section. The motion was denied, and the court below proceeded to judgment for the respondent, on the ground, as it is understood here, that the provisions of the section are in violation of the constitution; and that is the great question in the case. The failure of assessors to perform their duties according to their oaths, under statutes faithfully and carefully framed to carry out the constitutional provision that the rule of taxation shall be uniform, has been a fruitful source of litigation, and has seriously embarrassed the collection of the public revenues. Chapter 334 of 1878 was obviously designed to mitigate this evil. Whether or not some such statute would be the best remedy; whether or not it might not have been better to have left the law as it was, and to provide for the prosecution of every assessor violating his duty and his oath,--are not questions for this court. All that rested exclusively in legislative discretion. The only duty of the court is to sustain, as far as it can without violation of the constitution, any measure which legislative wisdom may adopt tending to insure the collection of the public revenues; and that duty the court is disposed most cheerfully to perform. Saying this, however, it is proper to say, also, that the court adheres fully to the doctrine of the late cases: Hersey v. Supervisors, 37 Wis. 75;Marsh v. Supervisors, 42 Wis. 502; Philleo v. Hiles, Id. 527; Schettler v. Ft. Howard, 43 Wis. 48; Goff v. Supervisors, Id. 55; Salscheider v. Ft. Howard, 45 Wis. 519. It might be regretted that the court ever sustained proceedings in equity to enjoin tax-deeds or tax proceedings upon grounds available at law, as coming within the general jurisdiction of courts of equity; but the regret would come too late, after such numerous cases, running through nearly 40 volumes of the Reports. And, whatever inconvenience the late exercise of this jurisdiction in the cases above cited may have caused, it seems to have been productive of great good. It appears by the governor's late message that the assessment of the whole state rose over a hundred millions from 1877 to 1878; still being, in the opinion of the governor, founded on statistics, little more than half what it should have been. The assessment roll of the taxing district in question here appears to have amounted in 1877 to $471,866, and in 1878 to $851,627.35. This indicates great progress towards assessing property at its true value, the only certain or safe basis for the constitutional rule of uniformity; and the court may well claim for its late decisions some credit for the great increase of assessed values during the last two years. But, however all this may be, the court will be none the less rejoiced to sustain any constitutional statute tending to avoid frequent appeals to equitable interference on behalf of large tax-payers, which small tax-payers cannot...