State ex rel. Dane County Title Co. v. Board of Review of City of Madison

• Decision Date: 05 November 1957
• Citation: 2 Wis.2d 51,85 N.W.2d 864
• Parties: STATE et rel. DANE COUNTY TITLE CO., a Wis. corporation, Appellant, v. BOARD OF REVIEW OF THE CITY OF MADISON et al., Respondents.
• Court: Wisconsin Supreme Court

Page 864

85 N.W.2d 864

2 Wis.2d 51

STATE et rel. DANE COUNTY TITLE CO., a Wis. corporation, Appellant, v. BOARD OF REVIEW OF THE CITY OF MADISON et al., Respondents.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Aberg, Bell, Blake & Conrad, Charles P. Seibold, Madison, for appellant.

Harold E. Hanson, City Atty., Henry B. Buslee, Asst. City Atty., Madison, for respondents.

STEINLE, Justice.

The appellant, Dane County Title Company, contends (a) that its title records are not taxable under provisions of sec. 70.04, Stats., (b) in the alternative, that if such title records are within the purview of sec. 70.04, Stats., they are specifically exempted as intangible property under provision of sec. 70.112, Stats.; (c) that there is no credible evidence under any reasonable view to sustain the valuation of $34,500 as determined by the assessor and confirmed by the board; and (d) in the alternative, should it be determined that there is credible evidence to sustain the valuation of the assessor and the board, then, nevertheless the same was based on improper considerations or upon false assumptions or theories.

Sec. 70.04, Stats., provides in part as follows:

'Definition personal property. The term 'personal property,' as used in this title, shall include all goods, wares, merchandise, chattels, and effects, of any nature or description, having any real or marketable value, and not included in the term 'real property,' as above defined.'

Sec. 70.112, Stats., provides in part as follows:

'Property exempted from taxation because of special tax. The property described in this section is exempted from general property taxes:

'(1) Money and intangible personalty. Money and all intangible personal property, such as credit, checks, notes, bonds, stocks and other written instruments.'

Germane also is sec. 272.18, Stats., which provides in part as follows:

'Property exempt from execution. No property hereinafter mentioned shall be liable to seizure or sale on execution or on any provisional or final process issued from any court or any proceedings in aid thereof, except as otherwise specially provided in the statutes: * * *

'(13) Supplies for abstracts. All books, maps, plats and other papers kept or used by any person for the purpose of making abstracts of title to land.'

Appellant is engaged in the business of selling abstracts of title, title insurance and related services. It owns and possesses the title records in question. The said records consist of notes and memoranda carefully indexed as to tracts of land. They contain abstracts of all instruments affecting title to land in Dane County as recorded in the Office of the Register of Deeds of said county for the period from 1832 to the present time. Included also are copies of additional public records affecting title to property in Dane County such as court proceedings, tax judgments, attachments and other liens, all of which too are indexed according to tract or alphabetically. Actually appellant maintains a tract index of every piece of land in Dane County from the time of government survey to date. Since January 1, 1943, the Dane County Register of Deeds Office has maintained a complete public tract index of all items of record from that time forward. While the Dane County Register of Deeds Office does not possess a public tract index of records preceding January 1, 1943, it does have a grantor-grantee index covering the periods both before and after January 1, 1943.

In 1950 and annually thereafter through 1953, the assessor of the City of Madison assessed the value of appellant's title records at $125,000. The assessments were confirmed by the Board of Review. In prior certiorari proceedings involving a review of the assessments of those years, the Circuit Court for Dane County, the late Hon. Alvin C. Reis then presiding, reversed the assessments on ground that the same were too high. Subsequently, and after further hearing, the Board of Review set the amount at $34,500 for each of the years 1950-1953. In 1954 the assessor of the City of Madison assessed the title records at $34,500. That assessment was confirmed by the Board of Review. The appellant accepted a refund for the years 1950-1953 and instituted the instant certiorari proceeding to review the 1954 assessment.

The questions presented by the appellant as to whether title records such as here are personal property within the definition of sec. 70.04, Stats., or whether they are intangible personalty and hence exempt from taxation under sec. 70.112, Stats., are considerations of first impression in this court. There is a conflict of authority as to whether abstract books and records are subject to taxation. Cooley on Taxation, vol. 2, (4th Ed.) p. 1214, sec. 553. The respective authorities are comprehensively annotated at 149 A.L.R. 1038. In Michigan it has been held that abstract books referring to land titles are not subject to a property tax. Dart v. Woodhouse, 1879, 40 Mich. 399; Perry v. City of Big Rapids, 1887, 67 Mich. 146, 34 N.W. 530; Loomis v. City of Jackson, 1902, 130 Mich. 594, 90 N.W. 328; Bay Trust Co. v. City of Bay City, 1937, 280 Mich. 44, 273 N.W. 437.

In other jurisdictions abstract books have been held to be subject to property taxes. Hidalgo Guarantee Abstract Co. v. City of Edinburg, 1949, Tex.Civ.App., 181 S.W.2d 597; Brooksville Abstract Co. v. Kirk, 1931, 101 Fla. 175, 133 So. 629; Schleman v. Guaranty Title Co., 1943, 153 Fla. 379, 15 So.2d 754, 149 A.L.R. 1029; Leon Loan & Abstract Co. v. Equalization Board, 1892, 86 Iowa 127, 53 N.W. 94, 17 L.R.A. 199; State v. St. Paul Abstract Co., 1924, 158 Minn. 95, 196 N.W. 932; Booth & Hanford Abstract Co. v. Phelps, 1894, 8 Wash. 549, 36 P. 489, 23 L.R.A. 864; Washington Nat. Bank of Walla Walla v. Fidelity, Etc., Co., 1896, 15 Wash. 487, 46 P. 1036, 37 L.R.A. 115.

See also 84 C.J.S. Taxation § 77, p. 188, and 16 McQuillin, Municipal Corporations (3rd Ed.) Taxation, p. 122, sec. 44.44.

At 51 Am.Jur., Taxation, p. 440, sec. 419, it is said:

'* * * and most courts hold abstract books, title books to be taxable as personal property, although there is some authority to the contrary.'

1 Am.Jur., Abstracts of Title, p. 156, sec. 3, states:

'Property in Abstract Books. In the orderly and profitable transaction of the business of furnishing abstracts of title, the persons engaged therein sometimes compile in books all the information which they may be called on to furnish respecting the title to real property in the locality where they operate. These abstract books are prepared at considerable expense, and constitute the working plant of a profitable business. They are consequently of great value to the owners, but their novelty as articles of ownership gave rise to some doubts as to their legal character as property. In one of the earlier cases the court adopted the view that abstract books have no inherent value and therefore are not subject to execution as property, and this decision was adhered to in a later case in the same jurisdiction holding that such books are not taxable. The weight of authority, however, as well as sound reasoning, supports the view that abstract books are property with all the usual incidents of other property, and as such may be seized under execution against the owner, and are subject to taxation.'

In Thompson, Abstracts & Titles (2d Ed.), Abstracts in General, pp. 52, 53, sec. 36, the following analysis of authorities is stated:

'Taxation of abstract books. There is a lack of uniformity of opinion relative to the question of the liability of abstract books to taxation. Some courts class them with private manuscripts as being of no intrinsic value, and for this reason say they are not liable to taxation. These authorities contend that such books are only valuable for the information they contain, and that information is conveyed by consultation or extracts; that their value is only kept up by their completeness and continued correction; that the sale of a complete copy would practically destroy their value in the hands of their owner; and that a similar compilation by any one else would have a like result. They hold that the value of such books, except as they are used, is nothing; that they resemble in nature, if not precisely, the books which are consulted by any person who makes an income from his acquired knowledge whether scientific or otherwise. [Dart v. Woodhouse (Mich.) supra, and Perry v. City of Big Rapids (Mich.) supra.] Although such books may be made subject to levy and sale on execution by statute, it is held that such a statute will not operate as modifying the rule by which they are considered not to be subject to taxation. [Loomis v. City of Jackson (Mich.) supra.] In some jurisdictions, however, such books, being used as a means of profit, are considered properly having a market value, and may be properly assessed for taxation. [Leon Loan & Abstract Co. v. Equalization Board (Iowa) supra and Booth & Hanford Abstract Co. v. Phelps (Wash.) supra.] It is argued that the chief value of such books consists in their contents being kept from the public. 'They are the means, in a sense the instruments, for carrying on a business; as much so as are the tools or machinery by which the artisan plies his calling.' [Leon Loan & Abstract Co. v. Equalization Board (Iowa) supra.] It is held that the fact that the books are largely in abbreviations and in cipher code which only a limited number of persons understand does not render them exempt from taxation. [Booth & Hanford Abstract Co. v. Phelps (Wash.) supra.]'

From the evidence in the case at bar we are of the opinion that the title records in question constitute 'personal property' in that they are chattels, and in that they have a real or marketable value, all within the definition of sec. 70.04, Stats. We are not in accord with the rule of the Michigan cases. That the records in question constitute 'property' is not controverted. T...