State ex rel. N. Shore Dev. Co. v. Axtell

• Decision Date: 09 October 1934
• Citation: 256 N.W. 622,216 Wis. 153
• Parties: STATE EX REL. NORTH SHORE DEVELOPMENT CO. ET AL. v. AXTELL, CITY CLERK.
• Court: Wisconsin Supreme Court

216 Wis. 153

256 N.W. 622

STATE EX REL. NORTH SHORE DEVELOPMENT CO. ET AL.

v.AXTELL, CITY CLERK.

Supreme Court of Wisconsin.

Oct. 9, 1934.

Appeal from a judgment of the Circuit Court for Kenosha County; E. B. Belden, Circuit Judge. Affirmed.

Certiorari by the State of Wisconsin, on relation of North Shore Development Company, and others against Albert E. Axtell, city clerk of Kenosha. From a judgment entered quashing the writ and dismissing the proceedings, the relators appeal.Shannon & Higgins, of Kenosha, for appellants.

Robert V. Baker, Jr., City Atty., and Chester D. Richardson, Asst. City Atty., both of Kenosha (Roy S. Stephenson, of Kenosha, of counsel), for respondent.

FOWLER, Justice.

A writ of certiorari was issued to bring up for review the action of the board of review in refusing to reduce the assessment of the improvements on land. The court entered judgment quashing the writ.

The respondent urges that the remedy was not available to the relators; that their remedy was to pay under protest the tax levied upon the assessment and sue to recover the excess, as section 74.73, Stats., provides may be done.

[1] The writ was issued and judgment thereon was entered while the assessment roll remained in the hands of the city clerk. It was thus in the power of the court to grant relief to the relators if upon the record they were entitled to it. The proceeding was therefore proper. State ex rel. Fox Valley Canning Co. v. Poole, 199 Wis. 175, 225 N. W. 730.

[2] The property involved is a three-story building with seven small stores and a garage upon the first floor and twenty-eight small apartments on the second and third floors. The assessment of the land separate from the improvements at $14,480 is not contested. The assessor fixed the assessed value of the building at $114,000. The relators claim this valuation is $50,000 too high and appeared before the board of review to support their contention. No evidence was offered before the board in contradiction of the testimony of the relators' witnesses. These witnesses fixed the value of the building at $64,323.63. The witnesses made a careful appraisal of the property and submitted a statement in great detail in support of their valuation. Testimony was presented as to “cost, depreciation, replacement value, earnings, industrial conditions,” location, and occupancy, all which are proper for consideration in determining assessment value, (State ex rel. Flambeau Paper Co. v. Windus, 208 Wis. 583, 243 N. W. 216), but none was given as to sales of like property, nor did the witnesses directly state what the property would sell for in their opinion at the present or in normal times, as between an owner willing to sell and a purchaser desiring to purchase. It is apparent that the value placed by the witnesses was based entirely on the income it was producing and was capable of producing. The present depreciated value of the building is given in the appraisal report as $101,517.55, which is stated to be “an estimate of the present value from a structural standpoint,” but it is stated in immediate connection that this is “not an appraisal of its true value which is determined on the basis of the net earning capacity.” The tax on the property computed on the assessed value is over $1,000 per year more than its net annual earnings, not deducting for annual depreciation. The property is well managed and fairly well occupied.

[3] The respondent claims that all this evidence is incompetent as not going to sale value, which the statute, section 70.32, provides must be the basis of the assessment. This claim is based upon the ruling of this court in State ex rel. Miller v. Thompson, 151 Wis. 184, 138 N. W....