State ex rel. Baker Mfg. Co. v. City of Evansville

• Decision Date: 03 June 1952
• Parties: STATE ex rel. BAKER MFG. CO. v. CITY OF EVANSVILLE et al. (two cases).
• Court: Wisconsin Supreme Court

Page 795

53 N.W.2d 795

261 Wis. 599

STATE ex rel. BAKER MFG. CO. v. CITY OF EVANSVILLE et al. (two cases).

Supreme Court of Wisconsin.

June 3, 1952.

The judgments quashed writs of certiorari, thereby affirming disputed tax assessments for the years 1949 and 1950. Material facts will be stated in the opinion.

Nitcher & Gill, Evansville, McGowan, Geffs, Geffs & Block, Janesville, for appellant.

D. F. Gallagher, City Atty., Evansville, John T. Harrington, Madison, of counsel, for respondents.

BROWN, Justice.

On the demand of plaintiff, Baker Manufacturing Co., sometimes referred to herein as 'the company', the circuit court granted certiorari to review the proceedings of the board of review of the city of Evansville which had resulted in the board's sustaining an assessment of the company's personal property for the year 1949. After examination of the record and argument by counsel, the court, by judgment dated October 16, 1951, quashed the writ. The company appealed.

On July 9, 1949, in compliance with sec. 70.47(7), Stats., the company filed with the board of review written objections that its personal property was assessed at 60% of its full value, whereas other real and personal property in the city was assessed at 35% thereof, thus compelling the company to pay more than its share of the total tax of the city. It requested that the valuation of its personal property be reduced to correspond to the values placed by the assessor on other property. Pursuant to statutory notice, the board of review held a hearing on the objections August 23, 1949, at which company representatives and counsel appeared. Mr. Nitcher, attorney for the company, was sworn as a witness in the company's behalf and testified that he had made a study of all the real estate sales in the city for the past two years and had found that the assessments of the parcels were regularly 31.25% of the sale prices. He also offered an affidavit by the State Supervisor of Assessments that his records showed the proportion was 31.50% of assessment to 100% of sale price of real estate.

The procedure used in assessing personal property is for the taxpayer to make a return listing all his taxable personalty at its full value. The company made such a return and the assessor placed its personalty upon the tax roll at 60% of the value shown in the return. The company presented evidence tending to show that tobacco in warehouse in the tax district was assessed at 12% of the market price and certain other personal property owned by third parties appeared on the tax roll at 30% of the value its owner had placed upon it.

The company called the city assessor, Phillip T. Smith, as a witness to examine him concerning his valuation of property appearing on the tax roll. At the beginning of the examination the city attorney stated: '* * * I will be very frank to admit that I intend to object to most of your examination of Mr. Smith. * * *.' The ground of the objection was that Mr. Smith's answers might impeach the oath on his assessor's roll. The oath, sec. 70.49, Stats., in brief, states that the assessment roll contains all the taxable real and personal property of the district and that every valuation of such property made by the assessor is the just and equitable value thereof as the assessor verily believes. By repeating this objection to pertinent questions concerning the methods used and the factors considered by the assessor in determining values, which objections were sustained by the board of review, and by stating his intention of interposing such objections to further questions on the subject, the city attorney effectively prevented the examination of the assessor by counsel for the company. This meeting adjourned without action by the board of review upon the company's objections to the assessment and without designating any time or place at which the hearing might be resumed.

On September 17, 1949, the city clerk notified Mr. Baker, president of the company, that at 7:30 p. m. on September 21, 1949 'The City Council and the Board of Review will hold an informal meeting at the City Hall * * * to discuss the matter of the personal property assessment of the Baker Manufacturing Company and invites you as an officer and director to be present.' The meeting was held and Mr. Baker and Mr. Nitcher attended. The clerk's record of the meeting states that 'an adjourned meeting of the board of review was called to order' and that Mr. Nitcher was sworn but no testimony was taken. In its original objection to the assessment and demand for a hearing the company had requested that all proceedings be reported. Upon such a request sec. 70.47(8)(e), Stats. requires the board of review to cause its proceedings to be taken in full by a stenographer or recording device. This was not done at the September 21st meeting and the clerk, in his return to the writ of certiorari, certified it was omitted because the meeting was informal and the company had not requested a record to be made. The failure to have the proceedings of this meeting taken in full is one of the company's assignments of error on this appeal.

Under the call of the meeting this was not a meeting of the board of review for the taking of testimony or for action. It was designated an informal meeting of the board and the city council for discussion in which the president of the company was invited to participate. There was a stenographic reporter present and his record, filed with the trial court as part of an affidavit, shows that meeting to have been informal, indeed, filled with recrimination and ending in a wrangle and abrupt adjournment. We consider that 'proceedings' by the board of review would have been outside the call of this meeting and we agree with the city's contention that no verbatim report of what transpired at this meeting of the board and city council, held for the purpose stated in the call, was required by the statute.

On October 17, 1949, the city clerk issued a notice that there would be a meeting of the board in the clerk's office at 7:30 o'clock the next evening. The taxpayer admits that it had ten hours' notice of this meeting and it did not attend. At this meeting the assessor and other witnesses were examined in respect to the assessment of the Baker Manufacturing Co. personal property. The board and the trial court relied on the assessor's testimony at this meeting to sustain the assessment. In State ex rel. Kappa Sigma Building Ass'n v. Bareis, 1937, 226 Wis. 229, 276 N.W. 317, 113 A.L.R. 985, we held that no notice was required to be given to a taxpayer of a hearing by the board of review affecting his assessment. The decision was based upon sec. 70.47(1), Stats. of 1935. There was then no statutory requirement, except in cities of the first class, that an objector should have a hearing with notice thereof. This statutory omission was remedied by Chap. 101, Laws of 1949, creating sec. 70.47(7), Stats., whereby a hearing is provided upon forty-eight hours' notice to the objector. The chapter was published May 1, 1949, and was in effect at the time of these proceedings. Since then sec. 70.47(7), Stats. controls the matter of hearing after objections rather than secs. 70.47(1) and (2), Stats. The authority of State ex rel. Kappa Sigma Building Ass'n v. Bareis, supra, was lost when sec. 70.47(7) was enacted. Sec. 70.47(4), Stats. states that the board may adjourn from time to time until its business is completed and if an adjournment is had for more than one day a written notice shall be posted on the outer door of the place of meeting stating to what time said meeting is adjourned. It does not appear in the record that any such notice was posted and probably none could have been because the last, August 23rd, meeting was not adjourned to any time. The meeting of October 18th was not in fact an adjourned meeting and the record of its proceedings does not refer to it as one held pursuant to an adjournment. It was a new meeting and in opening it the city attorney correctly stated for the record that it was 'Called for the purpose of the further consideration of the 1949 assessment.' As a new meeting, held pursuant to call and not to an adjournment, we consider the statutory forty-eight hour notice, sec. 70.47(7)(b), was required to be given to the objector or his attorney unless such notice was waived. It is not claimed that more than ten hours' notice was given, there was no waiver and the objector and his attorney did not attend the meeting.

At the October 18th hearing the assessor was called as a witness by the city attorney who propounded questions concerning the assessment, of the same general tenor as those to which he had objected when the company's counsel asked them. They were now deemed to be in support of the assessor's oath or certificate not to impeach it. The answers tended to support the tax roll and at the close of the meeting the board of review voted to confirm the assessor's 1949 valuation...