State ex rel. Hessey v. Daniels

• Decision Date: 28 November 1910
• Citation: 143 Wis. 649,128 N.W. 565
• Parties: STATE EX REL. HESSEY v. DANIELS, TOWN CLERK.
• Court: Wisconsin Supreme Court

143 Wis. 649

128 N.W. 565

STATE EX REL. HESSEY

v.DANIELS, TOWN CLERK.

Supreme Court of Wisconsin.

Nov. 15, 1910.

Dissenting Opinion, Nov. 28, 1910.

Marshall, J., dissenting.

Appeal from Circuit Court, Bayfield County; John K. Parish, Judge.

Mandamus by the State, on the relation of Mark Hessey, against Edward F. Daniels, Town Clerk, etc. A demurrer to the return to the writ was sustained, and respondent appeals. Affirmed.

By chapter 259, Laws 1905, it is provided that whenever it is made to appear to the state tax commissioners that the assessment of property in any assessment district was not made in substantial compliance with the law, and that the interests of the public would be promoted by a reassessment, such commissioners should have authority to order a reassessment and to name one or more persons who should make the same. It further provided that the commissioners should have authority to appoint a board of review to review the assessment made by its appointees for that purpose. Pursuant to the provisions of this law, a majority of the state tax commissioners appointed three persons to review the assessment and equalization made by the assessor and board of review of the town of Iron River in Bayfield county for the year 1909. The town clerk of that town, acting under the advice and direction of the town board, refused to make out a tax roll on the basis of the assessment and equalization made by the appointees of the tax commissioners. An alternate writ of mandamus was sued out requiring said town clerk to make out a tax roll for said town and said year on the basis of the reassessment made as aforesaid, and to show cause why he should not do so. By his return to the writ the town clerk justified his refusal to make out a tax roll in accordance with the reassessment, on the ground that the aforesaid chapter 259, Laws 1905, was unconstitutional and void and because the only lawful assessment made in said town in said year was that made by the assessor and board of review, duly elected by the electors of the town for that purpose. To this return the relator demurred, which demurrer was sustained, and this appeal is taken from the order sustaining the same.C. F. Morris and Olin & Butler, for appellant.

John Walsh and Luse, Powell & Luse, for respondent.

BARNES, J. (after stating the facts as above).

Section 9 of article 13 of our state Constitution provides that: “All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.” Acting under the provisions of chapter 259, Laws 1905, the substance of which will be found in the foregoing statement of facts, the state tax commissioners found that the assessment of the town of Iron River for the year 1909 was not made in substantial compliance with the law, and appointed certain nonresidents of the town to make a new assessment of the property therein and appointed certain other nonresidents to act as a board of equalization to review such assessment. The office of town assessor being one which existed at the time the Constitution was adopted, it is urged that the law in question violates the provision of the Constitution above quoted, in that it deprives the electors of the town of the right to choose their assessor and board of review and to have them perform their legitimate functions, and this is the sole question raised in this court.

It is elementary law that an act of the Legislature will not be declared unconstitutional unless its repugnance to the Constitution is clear and beyond reasonable doubt. There is a line of cases so holding, running from Norton v. Rooker, 1 Pin. 195, to McGillivray v. Joint School District, 112 Wis. 354, 359, 88 N. W. 310, 58 L. R. A. 100, 88 Am. St. Rep. 969, and no doubt beyond, and this general doctrine has never been qualified in words. Equally well settled and as oft reiterated is the other rule that “the Legislature has plenary power over the whole subject of taxation within constitutional limitations.” State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R. A. 956.

It is conceded that the law we are considering neither deprives nor purports to deprive local communities of the right to elect their assessors and the other officers who constitute the boards of review. It is likewise conceded that the persons appointed by the tax commissioners to make the assessment provided for, as well as persons selected to review it, are not officers. Hall v. State, 39 Wis. 79;Weise v. Board of Supervisors, 51 Wis. 564, 8 N. W. 295;State v. Myers, 52 Wis. 628, 632, 9 N. W. 777;In re Revisor, 141 Wis. 592, 124 N. W. 670. The appointees are selected merely to perform a specific act, and when it is performed their powers and functions cease. So the real question is: Does the act unlawfully deprive the local officers of the right to exercise their functions and the electors of the municipality of the right to choose their agents to do the particular work?

It must be remembered that, so long as the local officers obey the laws of the state, they are not meddled with and their functions are in no way curtailed, and it is only when they violate the law which they are bound to obey that the state undertakes to interfere. It should also be remembered that assessors in making an assessment, and boards of review in reviewing it, and local treasurers in collecting the taxes levied, perform governmental as well as municipal functions. Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Town of Crandon v. Forest County, 91 Wis. 239, 64 N. W. 847;Hollman v. Platteville, 101 Wis. 94, 76 N. W. 1119, 70 Am. St. Rep. 899. Furthermore, the state has a vital interest in insisting that its laws pertaining to taxation be honestly and fairly administered, to the end that the burden of taxation may be equitably distributed. Taxes are of three general kinds--state, county, and local. While the state and the county may fix a valuation of the taxable property in the smaller political units within their boundaries, different from that found by the local authorities, still in practice the local assessment may be a strong determining factor in fixing such a valuation. The matter of discovering personal property, and more particularly that of an intangible nature, must devolve very largely upon the work of the local assessor and board of review. In order to make an equal distribution of county and state taxes, it is essential that all taxable property that can be discovered be placed upon the tax rolls, and that a uniform basis for valuation be adopted and adhered to. So long as the practice prevails of assessing property in different localities at figures varying from 25 to 100 per cent. or more of its true value, and of doing the same thing locally for that matter, so long are we liable to have gross inequalities in the distribution of the tax burden. So the state in endeavoring to enforce the requirements of the law in regard to the assessment and equalization of property is not acting as a mere interloper exercising a paternalistic function, for the purpose of exploiting its right so to do, but is attempting in good faith to perform a duty in which its citizens generally have something more than a passing interest. All the state has undertaken to do is to review the work done by local officers when its proper agencies are satisfied that the law has been violated. In such a contingency the law in substance and effect provides for a reassessment of the property of the local municipality.

We fail to see where there is any difference in principle between the law in question and section 1077a of our statutes, which was in force for many years. That statute provided that a reapportionment of the valuation of the taxable property of the several towns, cities, and villages of any county, as fixed by the county board, might be reviewed by nonresident commissioners appointed by a circuit judge, and a readjustment made in accordance with the facts found. The validity of that law was attacked in this court on three separate occasions, and its constitutionality was sustained each time. The first assault was made on the ground that the law violated the provision of the Constitution which it is here claimed has been overridden. The cases are State v. Myers, supra, State ex rel. Ellis v. Thorne, supra, and Foster v. Rowe, 128 Wis. 326, 107 N. W. 635. While we do not wish to be presently understood as giving express sanction to all the reasons stated by the court in support of these decisions, we entertain no doubt that in principle the cases are correctly decided, and we have no hesitancy in holding that, whenever local assessors and boards of review act in disregard of the statutory duties enjoined upon them, the state has the power to provide for the appointment of outside agencies to execute the law which is being ignorantly or wantonly violated, or willfully set at defiance, as the case may be. It is true that section 1077a required the commissioners appointed under it to so adjust the valuations made by them that their aggregate should total the aggregate valuation of the entire property of the county as fixed by the county board; but this provision could have no bearing on the constitutionality of the law. It would be just as valid without it as with it.

There is no substantial difference in principle between chapter 259, Laws 1905, and section 1 of chapter 175, Laws 1850, which has been on our statute books ever since its enactment and now appears as section 1152, St. The earlier statute provides that, whenever the electors of a town shall fail to elect taxing officers, the county board may appoint those of an adjoining town to exercise their respective functions in the delinquent town. The...