Wilson v. Heller , 32 Wis. 457 ( 1873 )

Cole, J.

This is a common law writ of certiorari, brought to review the action of the board of review of the town of Menomonee in fixing the valuation of certain real estate belonging to the plaintiff for the purpose of taxation. The writ was allowed by the circuit judge at chambers June 15, 1872; and the valuation of the property was fixed by the board at its annual session in July, 1870. Before making return to the writ, the defendant moved to quash the same upon various grounds. A return was then made, and the motion to quash was submitted with the case upon the merits. The circuit court refused to quash the writ, and made an order reversing the action of the board of review in the matter. The correctness of this order is the question we have to consider on this appeal.

In the first place it is insisted on the part of the defendant, that the writ could only issue on an application to the court, and that the circuit judge in vacation had no authority to allow it. Whatever may have been the practice at common law, we think our statute clearly confers the power upon the circuit judges to allow the writ in vacation. Section 4, ch. 116, B. S., provides that the circuit “courts in term time, and the judges thereof in vacation, shall have power to award, throughout this state, returnable in the proper county, writs of injunction, ne exeat, and all other writs and process which may be necessary to the due execution of the powers with which they are vested.” This language is very comprehensive, and gave the circuit judge ample power to allow the writ in vacation. In the case of Owens v. The State, 27 Wis., 600, this court held that a county judge might allow the writ, by virtue ofy, provision which did not more clearly confer the power to allow it than the section above cited.

But another objection taken to the writ is, that notice should have been given of the application, and, since this was not done, the writ was irregularly issued. This position, we think, is clearly untenable. We agree fully with the remaric made by the counsel for the plaintiff upon this point, that it has been the uniform practice of the circuit courts, so far as we know, as it certainly has been of this court, to issue the writ without notice. Doubtless the court or judge might and would require notice to be given in a case where there was reason to suppose any great public inconvenience or injurious consequences would follow upon granting the writ without a full hearing upon the application. A case might easily be imagined, where it would be very proper that the adverse party should have notice of the application and an opportunity to be heard in opposition to granting the writ. But this was not such a case. And, as we think the power of the circuit judge to allow it is indisputable, at most it can only be said the judge might, in his discretion, have required notice of the application to be givem We have examined all the authorities to which we were referred by counsel on both sides upon this point, but find nothing in them calling for any comment. It is sufficient to say that the practice in this state is to allow the writ without notice, and we see no reason for holding that notice is absolutely essential.

A still further objection is, that the writ should have been quashed because it appeared that the plaintiff had been guilty of laches in not suing it out at an earlier day. It is not, however, claimed by the counsel for the defendant, that there is any time fixed by'our statute, within which the writ must be sued out. The authorities say that it is not a writ which a party may demand ex debito jusiitice, but that it is a discretionary writ, only granted when necessary to promote substantial justice. Tfee counsel for the plaintiff concedes, that, in analogy to the statute limiting the time within which a writ of error may be sued out, the court would probably not award the writ after two years except upon very special grounds. But the writ was issued in this case within two years after the action of the board of review, and the reasons why the application was not earlier made are fully stated in the affidavits of Messrs. Wilson & Hunt, the plaintiff’s attorneys in the cause. The delay in applying for the writ is satisfactorily explained by them; and therefore, without laying down any general rule on the subject, we content ourselves with saying, that under the circumstances the plaintiff was not guilty of laches in applying for the writ. He very naturally assumed that his counsel understood much better than he did, what legal proceedings should be instituted to protect his rights. It appears that two suits were commenced in equity (before the writ of certiorari was applied for), to restrain the collection of the taxes assessed against the plaintiff’s real estate ; one against the town treasurer, and the other against the county treasurer; both of which actions were dismissed by the plaintiff before a hearing upon the merits. And it is insisted that the voluntary dismissal of these actions ought to bar and conclude the plaintiff from resorting to this remedy. It is not, however, contended that the prosecution and discontinuance of those actions can operate as a technical bar to this proceeding, and we do not see that such litigation ought, under the circumstances, to have any influence upon the disposition of the cause. It is very doubtful whether the plaintiff could have obtained any relief in those actions, or had the action of the board of review set aside. And this is all we deem it necessary to say upon the preliminary questions discussed in the case.

Considering the case upon the merits, the inquiry arises, whether any sufficient ground is presented for setting aside the action of the board of review. It appears to us that there is. The valuation of the board manifestly proceeds upon an erroneous rule, and an incorrect interpretation of the statute in force in 1870. It was really contrary to all the evidence adduced before the board in regard to the valuation of the real estate. In the cases of Phillips v. The City of Stevens Point, 25 Wis., 594, and The Milwaukee Iron Co. v. Schubel, Town Clerk, etc., 29 Wis., 444, this court held that the board could not arbitrarily affix values to property in disregard of the sworn statements of witnesses. The board was bound by the undisputed evidence in regard to the valuation. It is possible that ch. 166, Laws of 1871, has changed this rule, and authorizes the board, when they deem the valuation too low, to raise the same, even against the evidence given before them in respect to the valuation. But in 1870 the board had no such discretion. They were bound to take the valuation as fixed by persons examined before them upon oath. Now, in this case, the plaintiff appeared before the board and was examined in regard to the value of the real estate in question. And this was really all the testimony there was before the board on the subject. Still the board refused to reduce the valuation as .they were required by law to do. This action of the board was manifestly erroneous and illegal.

In support of the motion to quash, certain affidavits were read for the purpose of showing that the lands were really worth as much or more than the valuation placed upon them by the assessor and fixed by the board of review. These affidavits were met by counter affidavits, which tended to show that the lands were assessed above their cash value, and much more in proportion to their true value than other real estate in the town of the same value. It is now claimed that the great preponderance of testimony shows that no injustice was done the plaintiff, even if he pays according to the valuation fixed upon his property by the board of review, and therefore he ought not to be permitted on this writ to take advantage of any formal and technical errors. If we were satisfied that substantial justice had been done, and that the plaintiff would pay no more than his proportion of taxes if the valuation fixed by the board were adhered to, we should be strongly inclined to dismiss the writ. But we do not think such an inference can be drawn from all the matters disclosed in the record.

The order of the circuit court, reversing and setting aside the valuation of the real estate in question fixed by the bpard of review, must therefore be affirmed.

By the Court:— Order affirmed.