West v. Ballard , 32 Wis. 168 ( 1873 )

LyoN, J.

It is provided by statute that the board of county supervisors shall determine and assess the relative value of all the property subject to taxation in each town, city or village in their county. The same is to be assessed at the full value thereof, according to the best judgment of the board. Tay. Stats., 395, § 8. Such assessment is denominated “ the county assessment,” and is the basis upon which state and county taxes are apportioned to the several towns, cities and villages of the county.

In making such assessment, the county board, unlike the town boards of equalization, are not required to receive testimony. Although they have before them the equalized assessment rolls of the several towns and municipalities in the county, they are not bound in any respect by the valuations of property therein contained. Hence tbe alleged fraudulent conduct of tbe assessor in making an undervaluation of tbe taxable property in tbe several towns of tbe county is quite immaterial. These assessment rolls are chiefly valuable to the county board for tbe statistical information which they furnish. Tbe county assessment is purely the result of tbe collective judgment and discretion of tbe county board; and tbe power to make it is fully and absolutely vested in that body, without qualification or restriction, or right of appeal from their determination. It is in tbe nature of a legislative power, and certainly tbe power of a legislature to make or enact laws is not more plenary than tbe power of tbe board of county supervisors to make or enact tbe county assessment. And inasmuch as a court of equity could not set aside a statute enacted by the legislature because a majority of tbe members thereof were actuated by corrupt and fraudulent motives in enacting it, so it seems to me that the court cannot for a like cause set aside tbe assessment in question, or interfere with it. We have not been referred to a case, and after considerable examination have been unable to' find one, which holds that a court of equity will take cognizance of a case like this.

Where the power to levy the tax exists, and the property is subject to taxation, as a general rule a court of equity ought not to interfere, but should leave a party aggrieved by any errors or irregularities in the assessment to resort to some appropriate legal remedy. Dillon on Corp., § 737. Here the power to make the county assessment, and the liability of the property to taxation, are undisputed.

The result of holding that the court ought to exert its equity powers in this case, and restrain the collection of the taxes assessed in the city of Appleton in excess of its just proportion thereof, would be to transfer to the courts the powers and duties of the board of .supervisors in respect to county assessments ; because it would be necessary for the courts to determine in each case the amount of taxes which each town and municipality in the county ought to pay, and to adjudge accordingly.

In the absence of precedent or authority, and in view of the embarrassments in the collection of the public revenues which would inevitably result were courts of equity to take cognizance of such actions as the present one, we are constrained to hold against the jurisdiction.

It seems almost incredible that any board of county supervisors could be guilty of the fraudulent conduct imputed in the complaint; but if such a case should ever occur, a sound public policy demands that individuals or municipalities aggrieved should be remitted to their appropriate remedy in a court of law, rather than that the extraordinary powers of a court of equity should be exerted in their behalf at the risk of impeding the necessary operations of the government.

The foregoing observations are mainly applicable to that branch of the complaint which charges that the county assessment was unjustly and fraudulently made. As to the other allegation in the complaint, which is to the effect that the board levied $15,000 more of county taxes than was necessary, with the intent (as the plaintiff believes) of appropriating the money, when raised, to an unlawful purpose, it' is only necessary to say that if the board shall hereafter vote to pay out this money, or any portion of it, for a purpose unauthorized by law, and the court is unable to give an adequate legal remedy to prevent the unlawful payment, its equity powers may be successfully invoked to that end. But the complaint fails to show that any cause of action in that behalf has yet accrued. See Judd v. The Town of Fox Lake, 28 Wis., 583.

Our conclusion is, that the complaint fails to state facts sufficient to constitute a cause of action, and that the order of the circuit court sustaining the demurrer thereto must be affirmed.

By the Court.— Order affirmed.