State ex rel. Hippler v. City of Baraboo, 292

• Decision Date: 26 June 1970
• Docket Number: No. 292,292
• Citation: 178 N.W.2d 1,47 Wis.2d 603
• Parties: STATE ex rel. Agnes L. HIPPLER, Appellant, v. CITY OF BARABOO, a municipal corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 1

178 N.W.2d 1

47 Wis.2d 603

STATE ex rel. Agnes L. HIPPLER, Appellant, v. CITY OF BARABOO, a municipal corporation, et al., Respondents.

No. 292.

Supreme Court of Wisconsin.

June 26, 1970.

This appeal is taken by the relator-appellant, a taxpayer of the city of Baraboo, from a judgment quashing a writ of certiorari and affirming the actions of the respondents, City of Baraboo and its council members, in adopting emergency resolutions and employing an expert appraiser to assist in the assessment of real and personal property.

These resolutions were adopted pursuant to sec. 70.055, Stats., which provides that when a municipality determines an emergency exists it may employ expert (and clerical) assistance, with the approval of the Department of Revenue, in making the assessment.

After the return to the writ was filed the city moved to supersede and quash the writ. The circuit court held a hearing and concluded, in its decision from the bench, that the city council had complied with the requirements of the statute and that 'neither this Court nor anyone else has any right to go back of that formal determination.' No testimony nor other proof was offered at the hearing.

The relator appeals. The facts will be set forth in the opinion.

Conway & Conway, Baraboo, for appellant.

Robert L. Greenhalgh, City Atty., Baraboo, for respondents.

BEILFUSS, Justice.

We believe two principal issues are presented:

1. Is the common council's action in adopting the assessment emergency resolution and employing an expert to assist subject to judicial review by writ of certiorari?

2. If the council's action can be judicially reviewed, is there a rational basis for such action?

In the early months of 1968 a petition, directed to the mayor and common council of Baraboo asking for a reassessment of all the taxable real and personal property of the city, was circulated and signed by a substantial number of taxpayers and filed with the city council. This was an attempt to have a reassessment pursuant to sec. 70.75, Stats. ¹ It is conceded by all parties that the petition was of no legal effect because of failures to comply with statutory formalities.

The assessment emergency statute, sec. 70.055, Stats., provides, in part, as follows:

'Assessment emergency; expert help. whenever the governing body of any town, village or city determines that an emergency exists in the assessment of the property of the taxation district and deems it necessary, after consultation with and approval by the department of taxation, to employ expert or additional clerical or other help to aid in making an assessment in order that such assessment may be equitably made in compliance with law, such governing body may employ such necessary help as is approved by the department of taxation and at such compensation as is likewise approved. * * *'

On November 12, 1968, and November 26, 1968, the common council adopted two resolutions pursuant to sec. 70.055, Stats. They are as follows:

'ASSESSMENT EMERGENCY RESOLUTION #1

'Whereas, an emergency exists in the assessment of the property of our City which, in our judgment, the assessor cannot meet without assistance.

'BE IT RESOLVED that the Mayor consult at once with the Department of Revenue, explain the situation to such body, and ask it to approve the hiring by this body of additional and expert help under the provisions of Section 70.055 of the Statutes to aid it in making the 1969 assessment of the district in order that an equitable assessment may be made in compliance with law.

'* * *

'ASSESSMENT EMERGENCY RESOLUTION #2

'WHEREAS, an emergency exists in the assessment of the property of our taxation district, and a resolution was duly adopted by this body on the 12th day of November, 1968, setting forth that such an emergency existed and authorizing the Mayor to consult with the Department of Taxation, explaining the situation, and ask it to approve the hiring by this body of such additional and expert help as deemed necessary to aid the assessor in making an equitable and lawful assessment of the taxation district, and,

'WHEREAS, the said Mayor has consulted with the Department of Taxation and after said consultation the City Council wish to proceed with providing assistance for the assessor in order that an equitable assessment be made in compliance with law for the year 1969,

'NOW, THEREFORE, BE IT RESOLVED, contingent upon the approval of the Department of Taxation under authority conferred by Section 70.055, that:

'James R. Laird Co. of Appleton, Wisconsin be employed as expert help at a compensation of $27,500.00.

'* * *.'

Copies of the resolutions were sent to the Department of Revenue, ^1a and pursuant to the resolution the mayor consulted with the department. The Department of Revenue, by its order dated January 7, 1969, acknowledged receipt of the resolutions and request of approval to employ expert help; it also acknowledged an emergency existed and that James R. Laird Company would assist in the assessment for the year 1969 for compensation of $27,500. The department then ordered that the city be authorized to employ the James R. Laird Company to assist and act together with the assessor in the assessment for 1969.

The assessment for 1969 was made, tax rolls assembled, and adjourned meetings of the board of review scheduled. Thereafter the relator, Agnes L. Hippler, obtained the writ of certiorari.

The relator-appellant contends that certiorari is a proper remedy and that the trial court erroneously concluded that it lacked power to review the action of the common council.

If the relator was seeking only to review the action of the board of review there would be no question of the property of certiorari as a remedy under sec. 70.47(9a), Stats., ² because certiorari is denominated the proper vehicle for appeal from a decision of the board of review. The action challenged here is that of the city council's declaration of emergency and the employment of an expert to assist the assessor. The statute under consideration here (sec. 70.055) does not provide for court review, therefore certiorari, as a means of review, is governed by principles of common law.

In Consolidated Apparel Co. v. Common Council (1961), 14 Wis.2d 31, 109 N.W.2d 486, a writ of certiorari was sought in the circuit court to challenge a special assessment made by the Milwaukee common council. The relator asked that the court declare invalid and void the entire proceedings because of alleged illegalities in procedure. The particular assessments had been made under the 'Kline Law' (ch. 275, Laws of 1931), which included appeal provisions for reviewing only the amount of benefit or damages arising out of the assessment. The court determined certiorari was a proper method of review because appeal was not possible under the statute to challenge the validity of the entire proceeding.

After reaching this conclusion Mr. Justice CURRIE, speaking for the court, then went on to summarize the propriety of certiorari at p. 36, 109 N.W.2d at p. 489:

'The writ of certiorari is not one of right, but is granted in the sound discretion of the court. State ex rel. Goldsmith Bldg. Co. v. Bolan (1951), 259 Wis. 460, 462, 49 N.W.2d 409; State ex rel. Hallauer v. Gosnell (1903), 116 Wis. 606, 619, 93 N.W. 542; 10 Am.Jur., Certiorari, p. 530, sec. 6; 14 C.J.S. Certiorari p. 198, § 50. In the absence of special statutory provisions it is well settled that, before the court will grant a writ of certiorari, it must appear that: (1) There has been some error committed, (2) the error has caused substantial harm, and (3) the petitioner has been guilty of no laches in seeking his remedy. State ex rel. Damerow v. Behrens (1960), 11 Wis.2d 426, 429, 105 N.W.2d 866; 10 Am.Jur., Certiorari, p. 531, sec. 6.' ³

In an early Wisconsin case challenging a tax levied by Dane county drainage commissioners, State ex rel. Turner v. Bell (1895), 91 Wis. 271, 275, 276, 64 N.W. 845, 847, the office of certiorari was characterized in terms of the corporate entity's power to act:

'There can be no doubt that upon certiorari the proceedings of boards and corporate bodies in levying a tax may be reviewed, and reversed if found void, although great care should be exercised in the issuance of the writ in such cases, and it is frequently refused on the ground of public inconvenience. Nor can there be any doubt but that the court has power, while inquiring into the validity of an act based upon a law which appears upon the statute book, to inquire into and determine the constitutionality of such law. The inquiry in such cases is primarily as to the power of the board or body to act, and this depends upon the validity of the law under which they claim to act. So that, if the court is to determine the primary question, it must necessarily pass upon the validity of the law.'

A limitation on the scope of matters considered on certiorari was further delineated in State ex rel. Badtke v. School Board (1957), 1 Wis.2d 208, 209, 210, 83 N.W.2d 724, 725:

'Certiorari lies only to review questions of jurisdiction or power of the body whose decision is in question. Exercise of either legislative or judicial discretion is not reviewable. Starry v. State (1902), 115 Wis. 50, 90 N.W. 1014; State ex rel. Milwaukee Medical College v. Chittenden (1906), 127 Wis. 468, 107 N.W. 500.'

It has long been a fundamental principle of Wisconsin jurisprudence that the actions of administrative bodies are subject to judicial review. Yet, there has been considerable dispute over whether the statutory means of appeal are the exclusive means of review of such matters. In summarizing the utility of certiorari to review these proceedings in certain instances, this court said in State ex rel. Kaczkowski v. Board of Fire & Police Com'rs of City of Milwaukee (1967), 33 Wis.2d 488, 500, 501, 148 N.W.2d 44, 149 N.W.2d 547:

'Where the legislature provides for a final and conclusive judicial...