State Ex Rel. Kenosha Office Building Co. v. Herrmann , 245 Wis. 253 ( 1944 )

There is a motion for rehearing by the property owner asking the court to change its mandate to affirm the judgment of the court below. That judgment set aside an assessment on certiorari of proceedings before the board of review to reduce the assessment and fixed the amount of the assessment. The motion brings up for review our ruling that the circuit court on certiorari of such proceedings "cannot make an assessment of the property or 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 [when] it finds upon the undisputed evidence before the board that the assessment has not been fixed upon the statutory basis."

Movant's counsel first urge that as the point was not raised in the court below this court could not consider it upon appeal. This contention is quite positively ruled against them in Capponv. O'Day, 165 Wis. 486, 491, 162 N.W. 655. We see no reason to repeat or add to what is there said. The point here raised was distinctly suggested by members of the court on the oral argument, and it might more appropriately have been presented by supplemental brief than by motion for review if counsel intended to rely upon it. However we will here try to treat the point adequately.

Counsel base their contention on three decisions of this court: Milwaukee Iron Co. v. Schubel, 29 Wis. 444; State exrel. Northwestern. M. L. Ins. Co. v. Weiher, 177 Wis. 445,188 N.W. 598; and State ex rel. Oshkosh Country Club v.Petrick, 172 Wis. 82, 178 N.W. 251.

The Insurance Company Case, supra, is referred to in the opinion hereinbefore filed. Instead of our saying in our opinion that it was stipulated in that case that "this court might fix the amount of the assessment" it would have been more exact to say, as appears from the quotation at the commencement of the opinion in that case, that it was agreed by the parties that if the rule for assessment of property contended for by the company was correct, the valuation fixed by the trial court was correct, and that if the rule of valuation adopted by the assessor and board of review was in accord with the statute, then the assessment should remain as fixed by the board. A judgment of the circuit court that determined the amount of the assessment was affirmed.

In the Petrick Case, supra, the property was assessed by the assessor at $30,000. The board of review reduced the assessment to. $27,500. The opinion in the case states that there was no evidence to sustain that valuation. The property owner had consented to an assessment of $25,000 and produced evidence of witnesses as to its valuation. Whether evidence was produced by the defendant does not appear from the opinion, but it appears from the case and briefs that the evidence produced by the property owner was uncontradicted. The court found as fact that the value of the property was $25,000 and entered judgment that "the assessment roll be amended" to conform to that finding. This court affirmed that judgment.

The affirmances of this court in two of the cases relied upon by the movant are sustainable on the theory that the evidence was not in dispute and definitely fixed the assessment of the property involved at the amount determined by the court; and that in the other, the Petrick Case, supra, is sustainable on the theory that the evidence was not in dispute and definitely established that no higher an assessment could be made than that fixed by the court and that amending the assessment to that amount therefore could not harm the defendant and did not harm the plaintiff because the plaintiff assented to it.

Much is said in the Milwaukee Iron Co. Case, supra, opinion that seems at first blush to support the judgment in the instant case. Such statements are supported in a general way by the New York decisions cited in their support, but examination of those cases indicates that in them there was no contradictory evidence and the evidence definitely fixed the valuation found by the court as according to the statutes on which the assessments involved were based. It is further to be noted that the Milwaukee Iron Co. decision, in its concluding paragraph, page 453, of the opinion indicates that where the evidence before the board of review is in conflict the court cannot substitute its own valuation for that of the board of review. It definitely states that a distinction may well be made between cases where the evidence is not in conflict and where it is, and that in the former the court may amend the assessment while it may not in the latter. The instant case is in the latter class.

It is obvious that in cases where the evidence is conflicting a determination of valuation by the court that would settle the controversy as to the assessment for the year involved rather than leave it open for contest on reassessment is desirable if the court has power to make it. But if the court has not jurisdiction to determine the valuation in case of contradictory evidence, then the court cannot make the determination however desirable that may be.

Defendant's counsel cite several cases of this court to the effect that where the evidence before the board is conflicting the court's power is limited either to affirmance or reversal.State ex rel. Milwaukee State R. Co. v. Anderson, 90 Wis. 550,568, 63 N.W. 746, definitely so states. Our statement, in the opinion filed, that "it is no function of the trial court on certiorari to make an assessment of property" is definitely so supported not only by that case but by State ex rel. N.C.Foster Lumber Co. v. Williams, 123 Wis. 61, 65,100 N.W. 1048; State ex rel. First L. Nat. Bank v. Board of Review,237 Wis. 306, 296 N.W. 614. In the Williams Case, supra, attempt was made to get this court to "broaden out the use of the common-law writ of certiorari" to amend an assessment to accord with the court's view of the evidence, but the court declined to do so. See page 66 of the opinion. It is also there said that the court up to that time had never attempted to change the scope of the writ in such proceedings. Perhaps the court in so saying did not have in mind the Milwaukee Iron Co. Case, supra. We may add that it has never yet, that we have discovered, attempted to broaden the writ except as it was done in the State ex rel. Northwestern M. L. Ins. Co. and Petrick Cases, supra, above considered. If the extension made in those two cases was proper we consider that it should not be carried further, and to extend it under the evidence of the instant case would so extend it.

By the Court. — The motion for rehearing is denied with $25 costs.