Shove v. City of Manitowoc

• Decision Date: 30 January 1883
• Citation: 14 N.W. 829,57 Wis. 5
• Parties: SHOVE v. CITY OF MANITOWOC.
• Court: Wisconsin Supreme Court

57 Wis. 5

14 N.W. 829

SHOVE

v.CITY OF MANITOWOC.

Supreme Court of Wisconsin.

Filed January 30, 1883.

Appeal from circuit court, Manitowoc county.

This is an action to recover back $359.04, alleged to have been illegally assessed in the year 1877, and illegally exacted and collected from the plaintiff by the defendant, March 1, 1878, with interest from that date. It appears from the evidence that in May, 1877, the plaintiff received from the assessors the usual personal property statement; that he put down in such statement, under the head of valuation by the owner, $2,000; that subsequently the assessor put down, under the head of valuation by the assessor, $5,000, at the request of the plaintiff, and thereupon he signed and swore to the same before the assessor. Subsequently, and on or about July 3, 1877, the plaintiff was notified in writing that the board of review proposed to raise the valuation of his personal property to $30,000. It appears from evidence on the part of the defendant that the plaintiff thereupon appeared before the board and denied their power to assess him as they had done, changing it from the assessment made by the assessor, without showing evidence upon which they had assessed him, but refused to be sworn; that the board thereupon, being satisfied, from statements made to them by citizens, that the valuation was too low on the assessment roll, and that the proper amount had been left off, by mistake or otherwise, ordered that the assessor enter upon the roll the amount of $15,000, which he did.

The court found, in effect, that such action increasing the assessment from $5,000 to $15,000 was taken arbitrarily, without the filing of any complaint, and without the taking of any testimony showing that the assessment should be so raised, or that it was too low; that the plaintiff being notified of such raise, and being before the board, was asked if he wished to be sworn, but replied that, in the absence of complaint or evidence in any way disputing his former sworn valuation, there was nothing for him to refute or change, and that such increase was made upon such action, and without any other proceedings, and that the plaintiff thereupon tendered the amount of the tax which he would have been required to pay if his assessment had remained $5,000, but the acceptance thereof was refused, and collection on the whole assessment of $15,000 was enforced, and the excess, or the amount paid on $10,000 of the assessment, to-wit, $359.04, was paid on compulsion and under protest, and hence unjustly taken and converted to the use of the defendant and retained by it, and repayment thereof was refused; and that the same was wholly unauthorized, and hence that the plaintiff was entitled to repayment, with interest from the time of payment, besides the costs and disbursements. Judgment was accordingly entered in favor of the plaintiff and against the defendant, from which this appeal is brought.

J. D. Markham, for respondent, Theodore C. Shove.

C. E. Estabrook, J. S. Anderson, and C. W. White, for appellant, the City of Manitowoc.

CASSODAY, J.

The facts found by the court seem to be supported by evidence. There can be no question but what the payment of the tax upon the increased assessment was under compulsion and against protest. Parcher v. Marathon Co. 52 Wis. 388; [[[S. C. 9 N. W. REP. 23.] Under chapter 166, Laws 1871, the board of review were at liberty to increase or diminish the assessor's valuation without hearing witnesses. McIntyre v....