Tainter v. Lucas , 29 Wis. 375 ( 1872 )

LYON, J.

This is an appeal from an order made by tbe circuit court, denying a motion of tbe defendants to vacate or modify a preliminary injunction restraining tbe defendant, tbe bounty treasurer, from selling tbe lands of tbe plaintiff, which bad been returned to such treasurer for tbe non-payment of certain taxes assessed thereon. The injunction was allowed upon an ex parte application, made when tbe action was commenced. Tbe motion was beard upon tbe complaint and answer, both of which were duly verified.

Tbe complaint alleges that tbe plaintiff is tbe owner of tbe lands therein described, consisting of several lots and parcels in tbe town of Menomonie, in Dunn county, and states tbe sum at which each of such lots and parcels was valued and assessed upon the assessment roll of tbe town for tbe year 1870, by tbe assessor of such town for that year.-

Tbe complaint then proceeds as follows: “ 5. That said assessment roll, with said valuation of said property so entered upon it, was, at tbe annual meeting of the town board of review of said town in said year, laid before said board as required by law; that tbe plaintiff appeared before said board of review at Said annual meeting, and was examined upon oath in relation to tbe valuation of said property as entered upon said roll; that said board of review, after such examination, refused and declined to lessen, reduce or otherwise change tbe valuation entered on said roll of any of tbe said described property,’’ except in a single instance therein specified.

. In paragraph ten of the complaint, the alleged value of each lot and parcel of land is given, which value is greatly below that fixed by the board of review in every case ; and it is therein alleged that the plaintiff testified before the board that the values stated in that paragraph were the true values of the respective lots and parcels of land therein described.

This is all of the information which the complaint gives of the testimony before the board concerning the value of such lands. Whether the plaintiff testified further than merely to state the value of his lands, or whether other witnesses testified on the same subject, we are not advised by the complaint.

The values fixed upon the lots by the plaintiff, were much less than the sums at which they were assessed; and, in the case where the valuation of a lot was reduced by the board of review, it was only reduced to a sum which was nine thousand dollars in excess of the value fixed by the plaintiff.

The complaint further alleges that the assessor, “ in assessing as aforesaid the said property of the plaintiff, with the intention and design of making the plaintiff pay more than his just and equal portion of the taxes to be paid in said town, fraudulently and corruptly made a distinction against • the plaintiff, and fraudulently and corruptly assessed his property to an amount greatly in excess of its true, just and equitable value for taxation, and greatly in excess of the assessed value of any and all other property assessed in said town in said yeai-, belonging to and owned by parties other than this plaintiff and those associated in business with'him, as hereinbefore set forth.” It also charges that a majority of the members of the board of review, to wit, the assessor and town clerk, were actuated by the same corrupt and fraudulent motives, in refusing, as such members, to lessen the valuations of the plaintiff’s lands. It is unnecessary to state the further averments of the complaint.

The answer contains a general denial of those portions of the complaint which charge the assessor and town clerk with fraud, and it positively alleges that “the said board of review did not make, or attempt to make, any unjust, wrongful or fraudulent discrimination against said plaintiff in tbe assessment or valuation of said real property of tbe said plaintiff.” It also contains further allegations “ upon information and belief,” to tbe effect that such assessment and valuation were honestly and fairly made by the assessor and the board, in strict compliance with the law, without fraud or evil intent, and that the same is a just, true and honest valuation of the plaintiff’s lands.

The averment of fraud in the complaint is positive in form. The counsel for the plaintiff contends that the positive general denial in the answer, of such fraud, is qualified by the subsequent denial thereof on information and belief, for the reason that the chairman of the board of supervisors of the town of Menomonie, and the clerk of the board of supervisors of the county of Dunn, who verified the answer, are not charged with fraud, and would not know positively that the assessor and town clerk were not guilty of the fraud charged. We think that this is a correct position. The motives which controlled the assessor and town clerk in fixing the valuation of the plaintiff’s lands could not be positively known to any person other than themselves. No third person can swear positively to the mental processes of these officers. Hence, whatever the form of the denial of fraud in the answer, it amounts to nothing more than a denial upon information and belief. '

But this principle operates as a two-edged sword. Applied to the complaint, which is verified by the plaintiff, the positive averment of fraud therein contained, becomes, in its legal effect, merely an averment thereof upon information and belief.

The denial of fraud being as broad and as positive as the averment thereof, the case comes within the rule laid down in Smith v. The City of Appleton, 19 Wis., 468. In that case, the rule is thus stated by the chief justice: “ For the purpose of dissolving an injunction upon complaint and answer, the denial must be of the same positive character as the averment.” See also Dinehari v. The Town of La Fayette, 19 Wis., 677.

It follows from wbat has been said, that, as tbe case now stands, tbe injunction, so far as it is founded upon tbe aver-ments of fraud, cannot be sustained. But it does not necessarily follow therefrom that it sbould.be dissolved. If tbe complaint shows that tbe board of review, to which tbe plaintiff appealed from the valuation of tbe assessor, fixed tbe value of tbe plaintiff’s land above the real value thereof, arbitrarily, and against all tbe evidence relating thereto, produced before it, tbe case eomes -within the decisions of this eourt in Phillips v. The Oily of Stevens Point, 25 Wis., 594, and The Milwaukee Iron Co. v. The Town of Hubbard {ante, p. 51), and tbe injunction should be sustained without regard to tbe averments of fraud. The allegations of tbe complaint relative to tbe proceedings before tbe board of review have been fully set forth, and tbe answer expressly admits that they are true.

•But we think that tbe complaint is defective in failing to state affirmatively that it contains all of tbe testimony before tbe board of review relating to tbe value of plaintiff’s .land. Although the plaintiff testified that bis lands were assessed at more than their value, it does not appear but that there was other testimony before the board, preponderating over that of tbe plaintiff, and sustaining the valuations fixed by tbe board. All reasonable presumptions must be made in favor of tbe regularity and validity of tbe proceedings of publie officers and tribunals. This is a very familiar rule. An application of it to this case requires us to presume that there was sufficient testimony before tbe board .of review to sustain its action in fixing tbe value of tbe plaintiff’s lands. We are not at liberty to disturb tbe assessment unless it affirmatively appears that tbe same was made in violation of law. Tbe mere statements that tbe assessment is too high, and that testimony was produced to tbe board of review tending to show that it is too high, are not alone sufficient .to demonstrate that tbe board ought to have reduced tbe valuation. These statements may be true, and yet tbe board may have fixed tbe valuation in strict accordance with the evidence before it, and as required by law.

Because of such defect in the complaint, we are compelled to hold that the injunction cannot be sustained on the ground that the valuations were fixed too high by the board of review.

We think also that the averments of fraud in the complaint, at least so far as fraud is charged against members of the board acting as such, are defective in the same particular. The facts constituting the alleged fraud should be stated ; and one very important, if not an essential, fact to make a case of fraud against such officers, is, that the board acted arbitrarily and against the evidence in fixing such valuations. As it is not claimed that the injunction can be sustained upon any other grounds than those above discussed, it follows that it should be dissolved.

The order of the circuit court, denying the motion to dissolve the injunction, must be reversed, and the cause remanded with directions to grant the motion.

By the Court — So ordered.