State ex rel. Smith v. Gaylord

• Decision Date: 29 January 1889
• Citation: 41 N.W. 518,73 Wis. 306
• Parties: STATE EX REL. SMITH v. GAYLORD, VILLAGE CLERK.
• Court: Wisconsin Supreme Court

73 Wis. 306

41 N.W. 518

STATE EX REL. SMITH

v.GAYLORD, VILLAGE CLERK.

Supreme Court of Wisconsin.

Jan. 29, 1889.

Appeal from circuit court, Walworth county; JOHN B. WINSLOW, Judge.

Certiorari, on relation of Harley F. Smith, to Charles C. Gaylord, clerk of the village of Elkhorn, to bring up the proceedings of the board of review of that village in respect to the assessment of relator's personal property. The circuit court affirmed the action of the board, and relator appeals.J. F. Lyon & Son, for appellant.

Dodge & Fish, for respondent.

ORTON, J.

This is a writ of certiorari to the respondent, as clerk of the village of Elkhorn, to bring before the court the proceedings of the board of review of said village in respect to the assessment of the personal property of the relator for the year 1888. The facts appearing from the petition and return are as follows: The relator made out the usual verified statement of his taxable personal property for that year, by entering in the column headed “Valuation by owner,” “Gold and silver watches, 1 in number, $50;” “average amount of moneys in possession or on deposit during year, $200;” “average amount of notes, bonds, mortgages, and other securities for debts due, or to become due, for each and every month during the year ending May 1st, over and above the average amount of bona fide unconditional debts owing for each and every of said months, as determined under section 1056, Rev. St., $3,000;” “all other personal property not including above, and not exempt, $300;” “total value of all personal property, $3,550,”--and returned said statement so made out to the respondent George W. Wylie, the assessor of said district. The assessor entered in said statement, in the column headed “Valuation by assessor,” opposite the $3,000 for notes, bonds, mortgages, etc., which in said statement is marked “Item No. 15,” $5,300, against the protest of the relator. The relator appeared before the board of review on the 25th day of June, 1888, and presented written objections against such increase of his assessments by the assessor, and asked that it be made in pursuance of his statement, on the ground that such statement was conclusive upon the assessor, and upon the board of review; and appointed J. F. Lyon, Esq., to appear for him before said board in the matter. The board of review, upon the relator's said objections, and on the ground that said sworn statement was binding upon the assessor, restored the valuation of said item No. 15 to the amount fixed by the relator. At the same time the said George W. Wylie claimed before the board that said item was assessed too low, according to said statement of the relator, and that it ought to be raised and increased to be a fair and equal valuation thereof, and offered to prove the same before the board. Thereupon said Wylie was duly sworn, and testified as a witness before the board in respect to such valuation, and was interrogated in respect thereto, against the repeated objection of the relator; and testified, substantially, that he had examined the records of Walworth county, and found thereon mortgages to the relator from several persons in the aggregate of $5,300, and that the relator told him that there had been nothing paid on said mortgages; that he asked the relator if he owed any debts, and he said he owed some debts when he left the state of New York, 40 years ago; and, when asked by the board if the relator made a statement of any debts the year before, the witness answered that he did not. Thereupon the board demanded of the relator that he be sworn, and testify as to the value of his personal property, and he refused so to do; insisting that his said statement was conclusive as to the value of the property, as item No. 15. Thereupon the said attorney of the relator (the relator himself being present) was heard upon the question of the valuation of item No. 15, and presented to the board a brief thereon. The matter was then laid over for consideration, with the understanding that said J. F. Lyon, Esq., the attorney of the relator, should be notified of the taking of further testimony, and the board adjourned to 9:30 A. M. of the following day, June 26, 1888. At that time said attorney of the relator was further heard on the question, and requested the board to adjourn to some future time for further consideration thereof, and the board did adjourn to 9 o'clock A. M. of July 6, 1888, with the knowledge of said attorney. Notices of said adjournment were posted in three of the public places in said village. On said day the board again met, the said attorney being present, and had an opportunity and was requested to offer further testimony, and to be further heard on the question, but he declined so to do. The board remained in session the whole day for such purpose, and late in the day decided to raise the valuation of item No. 15 in said statement to $5,300, and fixed the same at that amount. On this record the circuit court affirmed the decision of the board of review.

I have been thus particular in stating the facts appearing of record, for a proper understanding of the first two points made by the learned counsel of the appellant: (1) That the notices required by the statute were not given of the meetings of the board; and (2) that the action of the board was not supported by evidence.

As to the first point, it may be said, in brief, that inasmuch as the statute has imposed the duty of posting notices upon the clerk, and not upon the board, and the board are required to meet for a review of the assessments, as a public and imperative duty, any neglect of the clerk in such particular would not affect the legality of their meeting for such purpose, or their jurisdiction to hear and decide cases in which parties interested have had actual notice, or submit their assessments to a review by the board by consent. Section 1060, Rev. St. The only object of such notices is to apprise those interested of the time and place of the meetings of the board, so that they may be heard touching their own assessment. That others or all of those assessed besides himself have not had due notice is immaterial to him, if he has had actual notice, and appeared, and contested the raising of the valuation of his personal property as item No. 15, and been fully heard in the matter. All the rights in the law he had, he has exercised and enjoyed, and he has no right to complain, on behalf of others, that they had no notice. These are elementary propositions. But in this case the appellant waived constructive notice, by being all the time present and participating in the proceedings, and by being heard fully in the matter, without any objection or reservation on account of a want of the proper legal notices, or of any other irregularity. The meetings of the board were held and the arguments made at his request or with his full knowledge. But the question has been substantially so decided by this court. Cramer v. Stone, 38 Wis. 259;McIntyre v. White Creek, 43 Wis. 620;State v. Cooper, 59 Wis. 666, 18 N. W. Rep. 438. The board, therefore, had jurisdiction, and that is the main question on the writ of certiorari.

2. In such a case, we may not examine and weigh the testimony as to its preponderance, if there was competent evidence before the board to warrant the decision. State v. Whitford, 54 Wis. 150, 11 N. W. Rep. 424;Persons v. Burdick, 6 Wis. 63; Dexter v. Cole, Id. 319; State v. Cooper, supra. The assessor and witness Wylie found mortgages of record to relator of the amount stated, of $5,300. The relator was informed...