State ex rel. Davis & Starr Lumber Co. v. Pors

• Decision Date: 25 September 1900
• Citation: 107 Wis. 420,83 N.W. 706
• Parties: STATE EX REL. DAVIS & STARR LUMBER CO. v. PORS, CITY CLERK.
• Court: Wisconsin Supreme Court

107 Wis. 420

83 N.W. 706

STATE EX REL. DAVIS & STARR LUMBER CO.

v.PORS, CITY CLERK.

Supreme Court of Wisconsin.

Sept. 25, 1900.

Appeal from circuit court, Wood county; Charles M. Webb, Judge.

Certiorari by the state, on relation of the Davis & Starr Lumber Company, commanding W. A. Pors, as clerk of the city of Marshfield, to send up for review the proceedings taken in reference to the assessment against the relator in 1899 of certain property omitted in 1898. From an order dismissing the writ on the merits, relator appeals. Affirmed.

Marshall and Bardeen, JJ., dissenting.

On November 4, 1899, a writ of certiorari was issued out of the circuit court to the respondent as clerk of the city of Marshfield, commanding him to send up for review the proceedings taken in reference to the assessment against the relator in 1899 of certain property omitted in 1898. From the return it appears that the relator was assessed, under the heading, “Value of Logs, Timber, Lumber, Ties, Poles, and Posts, Mfrs.' Stock,” $11,335, and in addition was assessed under the same heading $14,604, marked, “Omitted for the Year 1898.” The latter item appears from the roll to have been made up in nearly equal parts of lumber and logs. The relator appeared before the board of review by its secretary, Burt E. De Yo, and its attorney, Hon. William F. Bailey, and objected to the assessment against it for lumber and logs omitted in 1898, and accompanying such objection filed the affidavit of said De Yo, not controverting the existence on May 1, 1898, of lumber and logs to the amount specified, but asserting that no part of the logs so existing on May 1, 1898, remained uncut or unmanufactured on the 1st day of May, 1899, and that none of them were in the city of Marshfield or elsewhere at the latter date; and further alleging that no part of the lumber owned by relator on May 1, 1899, or at any time subsequent thereto, or which was then situated in said city, was owned by said corporation on May 1, 1898, and that none of the lumber which it did own on May 1, 1898, was situated in the city of Marshfield on the 1st day of May, 1899. The records of the board state that the relator objected “on the ground that the assessor and the board have not the right or power to assess the personal property which was omitted in the assessment of said year 1898.” The board listened to argument, submitted the question of law to the attorney general, and finally overruled the objection. No witnesses were sworn, and no evidence offered or taken, before the board of review, unless the affidavit of said De Yo is such. After the filing of the return, the respondent moved the court, upon the petition, writ, return, and its exhibits, and upon certain additional affidavits, to quash the writ. Those affidavits tended to establish the existence at Marshfield, and appellant's ownership on May 1, 1898, of the lumber and logs so assessed, the inadvertent omission thereof, and that no taxes had been assessed or collected from the relator thereon for the year 1898. The court entered an order January 31, 1900, “that said writ of certiorari herein be, and the same hereby is, quashed and dismissed upon the merits”; from which order the relator appeals.W. F. Bailey, for appellant.

P. A. Williams and B. R. Goggins, for respondent.

DODGE, J. (after stating the facts).

1. The circuit court having expressly declared that it quashed the writ of certiorari “on the merits,” we, for the purposes of this review, shall consider its action as tantamount to a judgment of affirmance, in the light of State v. Common Council of Oconomowoc, 104 Wis. 622, 628, 86 N. W. 942, and authorities there cited. Upon such consideration two principal questions arise, and have been debated with much vigor by counsel: First, whether section 1059, Rev. St., as amended by chapter 50, Laws 1899, authorizes reassessment upon any omitted personal property which between the time of its omission and the time of reassessment has passed out of existence, out of the ownership of the person assessed, or out of the assessment district; second, whether such act authorizes reassessment of personal property omitted prior to the amendment.

Section 1059, with the amendment in brackets, provides: “Real [or personal] property omitted from assessment in any of the three next previous years by mistake or inadvertence, unless previously reassessed for the same year or years, shall be entered once additionally for each previous year of such omission, designating each such additional entry as omitted for the year 18--[[[giving year of omission], and affixing a just valuation to each entry for a former year as the same should then have been assessed according to his best judgment, and taxes shall be apportioned and collected on the tax roll for such entry.” This section had for many years served to authorize, and, with the aid of the general taxing machinery, to enable, the assessment and collection of omitted taxes on real estate. The addition of personal property to the subjects affected thereby could have had no purpose save to authorize and enable in like manner, and to the same extent, the collection of personal taxes which ought in previous years to have been paid, but, by reason of like omission to assess, had not been. This legislative purpose is entirely obvious, and should be given complete effect, unless insuperable obstacles prevent. Harrington v. Smith, 28 Wis. 43, 59;Brown v. Pendergast, 7 Allen, 427; 7 Lawson, Rights, Rem. & Prac. p. 5922.

The general purpose of legislation of this class, namely, to provide means for enforcing the obligation of each individual to contribute to the expenses of government according to the taxable property owned by him, whenever he shall have escaped or evaded that obligation, has many times received the commendation of this and other courts. It is promotive of, nay essential to, the constitutional behest that taxation be uniform. Tallman v. City of Janesville, 17 Wis. 71;Cross v. City of Milwaukee, 19 Wis. 509;Wilcox v. Eagle Tp. (Mich.) 45 N. W. 987. This purpose must in large measure fail if a disposal, consumption, or removal of personal property after the time when assessment should have been made prevents its reassessment.

The principle at the foundation of these reassessment laws is that the owner of property is under obligation--some authorities say he is indebted--to the government to pay a sum proportioned to the property owned by him on May 1st of each year. Warden v. Board, 14 Wis. 618, 620;Peters v. Myers, 22 Wis. 602;Flanders v. Town of Merrimack, 48 Wis. 567, 572, 4 N. W. 741;Sturges v. Carter, 114 U. S. 511, 518, 5 Sup. Ct. 1014, 29 L. Ed. 240. This obligation he owes primarily to the municipality in which certain classes of property are on that date situated, for the municipality, under our system, collects the taxes as trustee for the other branches of government, state, county, and school district.

Several obstacles are suggested by appellant to the enforcement of this statute, where the omitted property is either not owned by the same person, or is not within the same taxing district at the time of reassessment: First, among these is the language of the statute requiring that it be “entered once additionally” for each of the omitted years; the argument being that if the property cannot be entered originally against the person for assessment that year it cannot be entered “additionally” for preceding years. The language, of course, is not entirely apt as applied to the supposed situation, but it was used originally with reference to real estate, and accomplished the result of securing its reassessment for the years of omission. We have no doubt from the manner of the amendment that the legislative purpose contemplated the result rather than the clerical method by which it was accomplished. Plum v. City of Fond du Lac, 51 Wis. 393, 397, 8 N. W. 283. The appellant's objection is very technical and refined, hardly less so than would be the suggestion that the entry of any amount for preceding years must of necessity be “additional” to any sums otherwise assessable against the same person. The step thus criticised is but one of those leading to the ultimate result intended and commanded by the legislature, namely, that “taxes shall be apportioned and collected on the tax roll for such entry.” We are satisfied that any matters of mere form in the procedure can and should be adjusted to accomplish this result.

Again, it is urged that if the property is not in existence it cannot be within the jurisdiction of the assessors. This contention loses sight of the consideration that the whole subject of taxation is within the control of the legislature, subject only to the constitutional requirement of uniformity, and that branch of the government can confer jurisdiction to apportion and collect taxes when and where it deems best. Cross v. City of Milwaukee, supra; North Carolina R. Co. v. Commissioners of Alamance, 82 N. C. 259, 268. In the latter case the assessment rested with the township board of trustees at the time the tax should have been levied, but the function had before the time of reassessment been transferred to other officers. The latter were nevertheless held justified in taking the steps necessary for such reassessment and collection authorized by statute.

It is suggested that this construction, whereby assessors may assess property not in existence or not within their district, is inconsistent with the general policy of the statute (section 1055), which directs ordinary valuation for assessment of personal property to be upon actual view as far as practicable. But the section under consideration (section 1059) expressly excepts reassessments from that requirement by providing that they shall be “according to the assessor's best judgment.” This objection was urged and refuted in Cross v. City of Milwaukee, supra, where the property involved had...