Dean v. Gleason , 16 Wis. 1 ( 1862 )

By the Court,

Paine, J.

This suit was brought to restrain the sale of the plaintiff’s lands for taxes. The decision granting the motion for a rehearing in the case of Kneeland v. The City of Milwaukee, 15 Wis., 454, disposes of the objection based upon the omission of railroad property in the assessment roll.

The plaintiff urges a number of other objections, which it is necessary to notice. It is claimed, and the proof shows it to be true, that there was great neglect and inaccuracy on the part of the assessors in making up the tax list. Many men of wealth, with large amounts of personal property, were not called on at all to furnish lists of it, and considerable amounts were thus omitted which ought to have been inserted, and which a very little diligence on the part of the assessors would have enabled them to reach. There were also many errors and inequalities shown in the valuation of real estate, which it would seem .hardly possible for men of ordinary intelligence, acting under the obligation of an oath, to have committed. Yet it cannot be said, upon the whole evidence, that these things resulted from anything except errors of judgment and lack of diligence and thorough business habits on the part of those officers. It cannot be admitted that such defects shall invalidate the entire taxes. If they did, it would be useless to attempt to collect any tax. For although there probably have been very few lists that were so full of this kind of errors, as the one now under consideration, yet there doubtless have been still fewer which were entirely free from such errors. As a matter of sheer necessity the inequalities resulting from such defects must be endured. The only remedy is in the election of more diligent and competent officers. Weeks v. Milwaukee, 10 Wis., 242.

It is further claimed that the charter required the assessment list to be made by the assessors as a body, and not separate lists to be made for each ward by the separate assessors, each acting alone. This may be conceded as matter of law, and yet we think the charter was substantially complied with. It is true, the assessor for each ward made out in the first place the list of property in that ward and affixed his valuation. But they then came together as a body, and compared their several lists and agreed upon the correctness of the whole. The assessors, as a body, passed judgment upon the entire list, made up of the several ward lists, and this was all that the charter required. For it cannot be said that it was intended imperatively to require that there should be no division of the mechanical labor of making up the list, and that the entire board, or at least a majority of them, should actually assist in writing down and valuing every item at the very outset. It must be sufficient if, before the completion of the list, the assessors, as a body, exercise their judgment upon the entire list, and agree to its correctness, and that was done here.

It is said also, that the assessors did not meet to hear objections as the charter requires, But we think this is not true in point of fact. The assessors testify that they did meet, and the most that could be said from the plaintiff’s evidence is that they were not all present during some portions of the time.

Another objection is that the charter itself is unconstitutional, for the reason that it does not provide a uniform rule for taxing real estate and therefore is void under the decision in Knowlton vs. The Supervisors of Rock Co., 9 Wis., 410. This objection is founded upon sec. 21, chap. 7, of the charter (Laws of 1856, p. 106), which provides that lands used for farming p imposes and not divided into lots and blocks, and all out lots not subdivided &c., shall be , assessed at a moderate cash value by the acre. It is said that the legislature intended by this language, that a different rule should be adopted in assessing the value of such lands from that applied to other lands which were required to be assessed at their value. It is difficult to resist the conviction that such was their intention, and yet it may be doubted, whether the language used, is not too indefinite and uncertain to authorize a court to say that it amounts to a violation of the constitutional rule of uniformity. If there is a difference between the value and the moderate cash value of property, it is difficult to define what that difference is. And perhaps a law ought not to be held to conflict with the constitution, unless the language used is sufficiently certain to enable the court to say, that it does'provide two different rules of taxation. I. suppose the meaning of “a moderate cash value,” is a medium cash value, that is neither the highest or lowest cash valuation, but between the two. And this would be precisely where I should suppose it to be the duty of an assessor to fix it, under a statute requiring him to assess the property at its value. I concede that it is difficult to account for the enactment of this section at all, except upon the theory that the legislature intended to make some difference between these kinds of lands and others. Yet I cannot say that the language used requires any different valuation, from that which the assessors ought to put upon all property under the charter. I cannot say therefore that the constitution is violated. And although some of the assessors testified that they endeavored to follow the charter, and that they understood that the. charter made a difference between these lands and city lots, yet it appears on their cross-examination that the only difference which they supposed to exist, was in the actual difference of value, arising from the greater distance of the farming lands and out lots from the centre of business. And they testified that they assessed all 'property at a moderate cash value, so that the rule upon which they acted, was in fact a uniform rule.

Another objection is that a portion of the council who voted to levy this tax were not aldermen, for the reason that at the time of their election, the city charter was not in force for want of publication. Whether that was so or not, the charter was in force long before the levy of this tax, and those officers were at least officers de facto, and their acts cannot be avoided by any objection to the legality of their election. In re Boyle, 9 Wis., 264.

It is further objected that the assessors, before making their lists, agreed to follow the assessment roll of the previous year, in which property was rated at about one-third of its value. It is a notorious fact that this has been the common practice of assessors in this State ; and that property has usually been assessed in tax lists, at less than half of-the value at which it would generally be estimated. Whether such a practice can be sustained in point of strict law, we shall not now determine. But we think it a sufficient answer to an application for equitable aid, to say, that such an understanding on the part of the assessors, works no injustice to the taxpayers of their district, assuming it to be faithfully carried out. It might operate to the injury of other taxing districts, by diminishing the aggregate valuation of the district where it was adopted, provided property in other districts, was assessed at its full value. But perhaps the only remedy for inequalities growing out of such a practice by assessors, is in the equalization by the state and county boards. But it is clear that such a practice works no injury to any individual in the district where it is adopted. His property bears the same proportion to the other taxable property, that it would if all were assessed at its full value, so that his tax is not affected by it. He is therefore suffering no wrong. He is called upon to pay only such a sum as he ought to pay. There is therefore no reason why equity should interfere to relieve him. Courts of equity do not call their powers into exercise, to relieve against every illegality. 'It is well settled that they will not interfere against judgments at law, which have been wrongfully or even fraudulently obtained, unless the plaintiff can say something against the real justice of the judgment. Stokes v. Knarr, 11 Wis., 389; Ableman v. Roth, 12 Wis., 81. And this court has, I think, with the clearest reason, lately applied the same principle to questions of taxation. Every citizen is under the strongest obligations, to pay his just share of the public revenues. If, therefore, the tax has been assessed against him, and is no more than he ought to pay, even though there should be some defect in the pro. ceedings which might render them invalid by the strict rules of law, there is no reason why equity should interpose its extraordinary power in his behalf. Warden v. Supervisors of La Fayette Co., 14 Wis., 618; Mills v. Johnson, decided at this term.

The judgment is reversed, with costs, and the cause remanded with directions to dismiss the complaint.