State ex rel. City of Augusta v. Losby

• Decision Date: 22 April 1902
• Citation: 90 N.W. 188,115 Wis. 57
• Parties: STATE EX REL. CITY OF AUGUSTA ET AL. v. LOSBY, CLERK, ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

115 Wis. 57

90 N.W. 188

STATE EX REL. CITY OF AUGUSTA ET AL.

v.LOSBY, CLERK, ET AL. (TWO CASES).

Supreme Court of Wisconsin.

April 22, 1902.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Certiorari by the state on the relation of the city of Augusta and others, against George J. Losby, clerk of Eau Claire county, and others, to test the validity of the decision of commissioners appointed to revise the county assessments for 1899 and 1900. From an order superseding the writ, relators appeal. Affirmed.

Proceedings were duly had, on petition of the mayor and common council of the city of Eau Claire, pursuant to section 1077a, Rev. St. 1898, for a revision of the county assessment of the property in the various taxing districts thereof for 1899, resulting in a decision by the commissioners, duly evidenced by their certificate filed with the county clerk according to law, reducing the assessed value of the property of such city $1,177,403, and that of the city of Altoona $6,909, and increasing the assessed values of the property of the other taxing districts in the county, over those made by the county board, in proportion to such values, sufficient to leave the total value of all the taxable property in the county for such year the same as that fixed by the county board. A writ of certiorari was sued out of the circuit court on the relation of several of the taxing districts, represented by their proper officers and by several taxpayers thereof, being parties who now appear as appellants, to test the validity of the commissioners' decision. The grounds of the invalidity claimed in the petition are: First, that the commissioners ruled that they had no jurisdiction to inquire into whether the property in the city of Eau Claire, or any taxing district which was subject to taxation for the year 1899, was omitted from the assessment rolls and not considered by the county board, or to take such property into consideration in making the decision, and accordingly refused to hear evidence offered to prove that there was more than $1,500,000 of personal property in the city of Eau Claire so omitted in 1899 from the assessment roll and ignored by the board in making its assessment, such property consisting of bank credits and other debts to residents of said city over and above their exemptions; second, that the certificate filed by the commissioners, evidencing their determination, was not in the form required by law. The petition for the appointment of the commissioners, the order appointing the commissioners, and their certificate, were made a part of the petition for the writ. No complaint was made of any matter up to and inclusive of the commencement of the proceedings before the commissioners. The writ was directed to the county clerk, the clerk of the circuit court of Eau Claire county, the cities of Eau Claire and Altoona, and the commissioners. It was duly served on all such parties. A motion was duly made to supersede the writ which was granted by the court and an order was entered accordingly, from which this appeal was taken.W. H. Frawley (H. H. Hayden and H. B. Walmsley, of counsel), for appellants.

James Wickham, for respondents.

MARSHALL, J. (after stating the facts).

The commissioners having concluded their labors, filed the result thereof with the county clerk, and gone out of office before the filing of the petition for the writ, obviously they had no control over the official record of their proceedings, and were not proper parties for the purpose of bringing the same before the court. If the writ had been directed to them alone, the court would have obtained no jurisdiction to consider any question touching their decision. It has been so often held by this court that a writ of certiorari must go to the custodian of the record of the proceedings sought to be reviewed, that where that is the official history of proceedings of a continuing body, such as a city council or county board, its clerk is deemed the mere agent thereof, and the real custodian of the record the body itself; that where an officer like a county clerk is legally in possession of the record of the doings of a body no longer in existence, he is the proper person to return the same into court in response to a writ of certiorari sued out to review the same, and that the writ should run to and be served on him in order to give the court jurisdiction to consider matters complained of, that it would be a work of supererogation to go over the subject anew at this time. It is the settled law of this state that a writ of certiorari to review the proceedings of a continuing body must go to the body itself; and that a writ of certiorari to review the proceedings of a tribunal no longer in existence must go to the officer having possession of the record. State v. Common Council of City of Fond du Lac, 42 Wis. 287;State v. City of Milwaukee, 86 Wis. 376, 57 N. W. 45;State v. Town of Manitowoc, 92 Wis. 546, 66 N. W. 702;State v. McGovern, 100 Wis. 666, 76 N. W. 593;State v. Everett, 103 Wis. 269, 79 N. W. 421.

No complaint being made by the petition of the proceedings for the appointment of commissioners, the only record material to the relators' propositions, for consideration by the court, was that made by the commissioners which the law required them to file, and which, according to the petition, was filed with the county clerk. It follows that service on such clerk was necessary to jurisdiction to review the commissioners' decision, and that no other service was necessary. Doubtless it was proper for the court to order the writ served upon parties directly interested in maintaining the validity of the decision and to permit them to have their day in court in respect thereto in the certiorari proceedings. But they were not necessary parties in a jurisdictional sense. The commissioners were not interested in their decision, nor were they in control of any record which could be reached by the writ. Counsel for appellants, to maintain their position that it was proper to direct the writ to the commissioners and to require them to report to the court the history of their proceedings not embodied in any official record, or required to be so embodied, or to be preserved in any way, confidently refer to statements by text writers to the effect that where the writ is directed to a nonjudicial body, not required to keep a record, it may properly require such body to return a history of its proceedings based on personal recollection, and that it may, in a case where there is no official record, require a return of matters dehors the record. Courts that hold to such doctrine, either by the aid of a statute or independently thereof, have extended the office of a common-law writ of certiorari beyond that recognized here. In Massachusetts, where such writ is used to correct errors of law in proceedings not according to the course...