State ex rel. Ellis v. Thorne

• Decision Date: 05 November 1901
• Citation: 112 Wis. 81,87 N.W. 797
• Parties: STATE EX REL. ELLIS ET AL. v. THORNE, COUNTY CLERK.
• Court: Wisconsin Supreme Court

112 Wis. 81

87 N.W. 797

STATE EX REL. ELLIS ET AL.

v.THORNE, COUNTY CLERK.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Syllabus by the Judge.

1. The legislature has plenary power to deal with the whole question of taxation, subject to the constitutional limitation that taxes can be imposed only for public purposes, and that the rule of taxation must be uniform. Its power is supreme in the selection of objects for taxation, determining the amount of taxes to be levied thereon and the purposes thereof, subject to the limitations before indicated, and in devising the machinery for assessing the taxable property, imposing taxes thereon, and collecting and disbursing the same.

2. The enactment of section 1077a, Rev. St. 1898, providing for a review of the county equalization of the assessed value of property in any county, made by the assessors of the various taxing districts therein, by a commission appointed by the circuit judge for such county, was a legitimate exercise of legislative power over the subject of taxation.

3. The commission appointed under section 1077a, Rev. St. 1898, is required to act judicially, but not in a matter of law or equity within the meaning of section 2, art. 7, of the constitution.

4. Section 2, art. 7, of the constitution, vesting all judicial power in matters of law or equity in certain courts, does not prohibit officers other than those holding judicial positions, strictly so called, from acting judicially. It only prohibits them from acting judicially in actions at law or in equity; that is, from doing those things which were done in actions at law or suits in equity, according to the system of jurisprudence which prevailed in this state at the time of the adoption of the constitution.

5. A common-law writ of certiorari calls for the record of the proceedings challenged on jurisdictional grounds. The return to the writ imports absolute verity so far as it is responsive thereto. The allegations upon which the writ was founded, recited therein and not responded to by the return, are deemed to be true. Neither affidavits nor proofs of any kind, contradicting the return, can properly be considered in determining a certiorari proceeding. After the return to the writ has been made, the court must give judgment upon the record of the challenged proceedings as it appears thereby, either on the merits or by quashing the writ.

Appeal from circuit court, Marinette county; Samuel D. Hastings, Judge.

Certiorari by the state, on the relation of William Ellis, Jr., and others, against George W. Thorne, county clerk. From an order dismissing the writ, relators appeal. Affirmed.

Proceedings were taken, under sections 1077a, 1077b, Rev. St. 1898, to review the action of the county board of Marinette county equalizing the assessed valuation of the property of the various taxing districts therein for the year 1897. A writ of certiorari was duly sued out of the proper circuit court to test the validity of such proceedings. The petition for the writ contained, among other things, the following statements, in substance: The county board of Marinette county, on November 9, 1897, in due form equalized the assessed valuation of the property in said county for the apportionment of the state and county taxes for such year. June 7, 1898, the city of Marinette, one of the taxing districts of such county, through and by authority of its common council, applied for the appointment of commissioners to review such equalization pursuant to the statutes on that subject (sections 1077a, 1077b, Rev. St. 1898). The circuit judge to whom the application was made acted thereon without any notice having been served upon any member of the county board in said county pursuant to section 1077a. The commissioners were appointed, as asked for in the petition, June 7, 1899. The commission thus created filed a determination with the county clerk of Marinette county November 21, 1899. The commissioners held their meetings and conducted their proceedings without notice to the clerks of the towns interested. The determination of the commissioners was not filed till after the state and county taxes for 1899 had been apportioned by the county board. They did not, within three months after receiving notice of their appointment, file their determination with the county clerk.

For a return to the writ, respondent presented the petition for the appointment of commissioners, which petition complied with the statutory requisites, a notice in writing to the county board as required by the statute, a notice of hearing before the commissioners, with proof of the service thereof pursuant to section 1077b, the order appointing the commissioners, the oaths of the commissioners required by law, and their final determination. The notice of the application for commissioners was for November 5, 1898. The order showed that the appointment was made June 7, 1899. It recited as facts that due proof was made, on the return day of the application, of service of notice thereof; that action was deferred because the attorney for the petitioner suggested that such course might be taken, as there was a prospect of a settlement of the controversy; that later, it appearing that no settlement had been made, and such attorney having requested action upon the petition, commissioners were appointed as prayed for.

The certiorari proceedings were duly noticed for trial at a special term of the circuit court, and an order to show cause why the writ should not be quashed was made returnable at the same time. Several affidavits were presented in support of the motion in regard to the proceedings to obtain the appointment of the commissioners and the manner in which they performed their duties; also affidavits in regard to the value of property in the county, and other matters not of record. The proceedings were heard upon the merits and the motion at the same time. The court decided that the appointment of the commissioners and their determination were valid, and thereupon affirmed the same and quashed the writ of certiorari. From such determination an appeal was taken to this court.

Quarles, Spence & Quarles, for appellants.

M. J. Feeney (Eastman & Martineau, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

This appeal turns on whether the statute of this state (section 1077a, Rev. St. 1898) is unconstitutional, providing for the appointment of commissioners by the circuit judge of any county, on petition as therein indicated, presented to such judge within one year after the county assessment of property in any year, for the apportionment of county and state taxes pursuant to section 1073, to review such assessment and correct it if justice shall so require, their determination to be final, and the inequalities, if any, in the taxes apportioned on the unjust assessment to be corrected in the next year's apportionment of state and county taxes as therein provided. Appellant insists that such statute violates section 2, art. 7, of the constitution, vesting “the judicial power of this state, both as to matters of law and equity, in a supreme court, circuit courts, courts of probate, and in justices of the peace,” and such municipal courts as the legislature may see fit to establish. It is considered that counsel's contention cannot be sustained unless we overrule State v. Myers, 52 Wis. 628, 9 N. W. 777. True, as claimed by counsel, the law was not there...