State ex rel. Kenosha Office Bldg. Co. v. Herrmann

• Decision Date: 06 June 1944
• Citation: 14 N.W.2d 157,245 Wis. 253
• Parties: STATE ex rel. KENOSHA OFFICE BLDG. CO. v. HERRMANN, Acting City Clerk.
• Court: Wisconsin Supreme Court

245 Wis. 253

14 N.W.2d 157

STATE ex rel. KENOSHA OFFICE BLDG. CO.

v.HERRMANN, Acting City Clerk.

Supreme Court of Wisconsin.

April 14, 1944.

Rehearing Denied June 6, 1944.

See 14 N.W.2d 910.

Appeal from a judgment of the Circuit Court for Kenosha County; Henry P. Hughes, Judge.

Modified, and as modified, affirmed.

Certiorari on relation of Kenosha Office Building Company against B. A. Herrmann, Acting City Clerk of the City of Kenosha, to vacate an assessment of relator's real estate. From a judgment vacating the assessment, the defendant appeals.

The trial court reduced an assessment of respondent's real estate in Kenosha on certiorari from the Board of Review from $223,000 to $150,000. The undisputed facts are as follows: The Board of Review in the previous year on certiorari reduced the assessment from $244,000 to $150,000. The situation below in this case is precisely as it was in the previous case except that the net rental of the property in 1942 was increased by practically the same amount that its taxes were reduced by the reduced assessment.

The property of the plaintiff is an eight story office building built for and by a bank in 1928 and planned especially to accommodate the bank which occupied for its banking quarters the first and part of the second floor. It was built at a total cost of about $400,000. While the bank occupied these quarters the building produced a rental of $35,000 a year, 55% of which on the average was paid by the bank. The bank ceased occupying the building in 1933, and since then the bank quarters have been vacant, except for inconsequential occupation for short temporary purposes not connected with banking business, for which use only they are fitted. The original assessment was $246,930. In 1938 that assessment was reduced by $5,000. The 1938 assessment was carried forward until 1942.

The cost of the construction of the building was for the most part paid from proceeds of the sale of a $250,000 bond issue secured by mortgage on the property. The mortgage was foreclosed and the building purchased on mortgage sale in 1936 by a committee of the bondholders for $25,000. The plaintiff corporation was then formed and nearly all of the bondholders took stock in the new corpoation proportionate to their bond holdings. Those not taking stock were paid off at ten per cent. of par value of the bonds. Non-par stock to the number of 2,365 shares were issued and a mortgage of $35,000 was placed on the property. Back taxes to the amount of $29,650 had accrued. The property was listed on the bank books at a valuation of $54,000. No dividends have ever been paid on the stock except one of $1.50 per share and one of $3 per share in 1943 made possible by the tax reduction on the assessment in 1942. During 1941 and 1942 thirty sales of the stock have been made at $19 to $21 per share. The mortgage has been reduced to $16,000. The net revenue of the property as computed by the plaintiff in 1941 was $4,770; in 1942, $8,176. The increase in 1942 was practically the same as the reduction in taxes due to the reduced assessment. The building is the best office building in the city. There is no comparable building in the city, and there have been no sales of property similar to serve as a basis of estimating the price at which the property ‘could ordinarily be obtained * * * at private sale,’ which by sec. 70.32, Stats., is the value at which real estate must be assessed. The plaintiff has endeavored for several years to sell the property, and has reduced the offering price from $130,000 to $125,000 to $115,000 to $110,000. There was one tentative offer to take the property at a $130,000 valuation on condition that other property be taken in large part payment at a stated valuation. There is no demand for bank site property in the city and no need for bank quarters other than those now occupied. The lobby and the cashier and teller cages occupy the space of two stories at the front of the building with ceiling under the third floor, and the quarters for the staff of clerical employees occupy the second story at the rear. The bank quarters occupy twenty per cent of the cubic contents of the building and are elaborately and expensively finished. The windows reach three-fourths of the way to the third story and the ceiling of the room occupied by the lobby and cages is the floor support of the third story. Other facts are stated in the opinion.

Robert V. Baker, Jr., of Kenosha, for appellant.

Frank J. Shannon, of Kenosha, and J. E. Porter, of Milwaukee, for respondent.

FOWLER, Justice.

As appears from the foregoing statement the appeal is from a judgment on certiorari to review a decision of the Board of Review of Kenosha, hereinafter referred to as the ‘Board,’ confirming the assessment of respondent's real estate. The trial court by its judgment reduced the assessment from $223,000 to $150,000. The reduction was in the assessed value of the improvements, the part attributable to the land being left at $32,000. The respondent taxpayer asks that the assessment made by the lower court be affirmed. The appellant city seems to acquiesce in the claim of the respondent that this court may affirm the lower court's assessment if it holds that that court properly determined that the assessment could not exceed $150,000.

It is first to be pointed out that it is no function of the trial court on certiorari to make an assessment of property, or to order an assessment to be entered on the assessment or tax roll at any fixed sum. The sole function of the trial court is to set aside the assessment if it finds upon the undisputed evidence before the Board that it has not been fixed upon the statutory basis. Sec. 70.74, Stats., requires that the property then be reassessed. Nor is it the function of this court to make an assessment or direct at what sum an assessment shall be entered on the tax or assessment rolls. The respondent cites State ex rel. Northwestern Mutual Life Ins. Co. v. Weiher, 177 Wis. 445, 188 N.W. 598, as authority for the latter, but the record in that case, as shown by the briefs and printed case on file therein, stipulated that this court fix the amount of the assessment and this court yielded to the desire of the parties so expressed and at least suggested the proper amount and the parties acquiesced in accepting the amount suggested as the amount at which the property should be assessed.

The usual course in certiorari to review the action of a board of review has been for the trial court to determine whether the undisputed evidence submitted by the taxpayer was such as to show the assessment objected to was not based on sale value as fixed by the statute. If so the assessment has been set aside. Where the evidence so produced was controverted -if in any reasonable view the evidence as a whole would support the assessment-the assessment has been upheld. Also, if the record before the court shouled that the assessor or the board excluded from consideration evidence entitled to consideration or if the assessor based...