Plumer v. Board of Supervisors , 46 Wis. 163 ( 1879 )

Byast, C. J".

I. The record in this appeal presents several peculiarities apparently overlooked in the court below, and on which no point is made in this court. There is one, however, on which the appellants claim that they are entitled to a reversal of the judgment.

The complaint contained six separate causes of action. On the fifth and sixth, no evidence whatever appears to have been introduced. The fourth became immaterial to the judgment, upon the denial of the motion for a nonsuit on the three first.

The appellants moved for a nonsuit upon each of the causes of action, but assigned special grounds for the motion applicable to the three first causes of action only. The motion was overruled; and thenceforth the three last causes of action do not again appear in tire record; the findings of the court, the exceptions taken by the appellants, and the judgment, wholly ignoring them.

It is now assigned for error that the findings and judgment do not dispose of these three causes of action. But the court cannot hold this to be good ground of reversal, under the circumstances. It is quite apparent in the record that both the parties, and the learned judge of the court below, regarded the three last causes of action as out of the cause, after the respondent had rested his case, and until judgment. If the appellants had intended to rely on this ground here, they were bound, under the circumstances, in justice to the respondent and in fairness to the court below, to have called attention to it below, by motion or suggestion, so that the respondent would have had an opportunity of discontinuing the three last, causes of action, or that the learned judge .of the court below might have covered them in his findings and in the judgment. The peculiarity of the record in this respect makes it too late to raise the point for .the first time in this court.

II. It was conceded at the bar that the nonsuit was properly 'denied on the second cause of action. But it was claimed that the evidence given was insufficient to support the first and third causes, within the rule of Dean v. Gleason, 16 Wis., 1, and Smith v. Smith, 19 Wis., 615, recognized in all the cases. The court cannot assent to this view. The respondent appears to have given sufficient evidence, prima facie, to impeach the whole of the assessment rolls. The evidence tended to establish more than mistakes; tended to establish had faith in the assessments. And this view is accepted with the greater confidence, because the appellants made no attempt to rebut the case of the respondent. If the assessment rolls could he defended, the means of defense were peculiarly in their power. It should not be overlooked that, as the law now stands, an assessor is an incompetent witness to impeach, but a competent witness to support, his own assessment roll. And when the assessment rolls were impeached by such evidence [as the respondent gave, of the only character which can now be generally given, the failure of the appellants to call the assessors, or to account for not calling them, is not a little significant. It must be held that nonsuit was properly denied.

III. “When the motion for a nonsuit was overruled, the appellants moved to stay proceedings under section 5, chapter 334 of 1878, now embodied in section 1210 5, Eevised Statutes, until a reassessment could be made under that section. The motion was denied, and the court below proceeded to judgment for the respondent, on the ground, as it is understood here, that the provisions of the section are in violation of the constitution ; and that is the great question in the case.

The failure of assessors to perform their duties according to their oaths, under statutes faithfully and carefully framed to carry out the constitutional provision that the rule of taxation shall be uniform, has been a fruitful source of litigation, and has seriously embarrassed the collection of the public revenues. Chapter 334 of 1878 was obviously designed to mitigate this evil. "Whether or not some such statute would be the best remedy; whether or not it might not have been better to have left the law as it was, and to provide for the prosecution of every assessor violating his duty and his oath, — are not questions for this court. All that rested exclusively in legislative discretion. The only duty of the court is, to sustain, as far as it can without violation of the constitution, any measure which legislative wisdom may adopt tending to insure the collection of the public revenues; and that duty the court is disposed most cheerfully to perform.

Saying this, however, it is proper to say also, that the court adheres fully to the doctrine of the late cases, Hersey v. Supervisors, 37 Wis., 75; Marsh v. Supervisors, 42 Wis., 502; Philleo v. Hiles, id., 527; Schettler v. Ft. Howard, 43 Wis., 48; Goff v. Supervisors, id., 55; Salscheider v. Ft. Howard, 45 Wis., 519. It might be regretted that the court ever sustained proceedings in equity to enjoin tax deeds or tax proceedings upon grounds available at law, as coming within the general jurisdiction of courts of equity. But the regret would come too late, after such numerous cases, running through nearly forty volumes of the reports.

And whatever inconvenience the late exercise of this jurisdiction in the cases above cited may have caused, it seems to have been productive of great good. It appears by the governor’s late message, that the assessment of the whole state rose over a hundred millions from 1877 to 1878; still being, in the opinion of the governor founded on statistics, little more than half what it should have been. The assessment roll of the taxing district in question here, appears to have amounted in 1877 to $471,866, and in 1878 to $851,627.35. This indicates great progress towards assessing property at its true value; the only certain or safe basis for the constitutional rule of uniformity. And the court may well claim for its late decisions some credit for the great increase of assessed values during the last two years. But, however all this may be, the court will be none the less rejoiced to sustain any constitutional statute tending to avoid frequent appeals to equitable interference on behalf of large tax-payers, which small tax-payers cannot generally afford; thus making taxes actually paid unequal.

In this spirit, the statute now before the court will be considered. The main question here is upon section 5. But objections were made to several other sections, which the court was pressed to pass upon, and which, upon public considerations, will be noticed in their order. All the sections in question are embodied in the recent revision, but for convenience they will be considered in their original form, as found in chapter 334 of 1878.

1. It was objected to section 1, that the rule provided for the valuation of realty is different in detail from the rule for the valuation of personalty. So in some respects it has always been, and may well be. It is sufficient to satisfy the constitution, that the rule of the section provides for the valuation of real property at its full value, and that the assessor must use the best practicable means of ascertaining the value, It might have been better to have required it to be valued, as far as practicable, from actual view. But that was for the legislature alone to determine. In Marsh v. Supervisors, it was urged by counsel that assessment of realty upon actual view in that case was impracticable. But the court answered: “ The statute is peremptory, taking the case out of all rule of what is called reasonable construction. We cannot interpolate exceptions in it. Such an argument, which can have no force with courts, ought to have great weight with the legislature. It was probably in view of some such difficulty that the affidavit was changed by the statute of 1873. But we surely have no power to antedate that provision.”

2. It was objected that section 2, in declaring the effect of failure of assessors and other officers to comply in certain respects with the law, is an intrusion upon the judicial function. And so the court must hold. It is perhaps competent for the legislature so to frame any provisions for the action of officers in tax proceedings, not going to the groundwork of the tax, as to make them directory only, not mandatory. But this the section does not attempt to do. On the contrary, the proviso in effect declares mandatory the compliance of officers with all duties covered by the section, which were mandatory before.

To provide for the whole process of taxation is purely legislative, subject only to the uniform rule of the constitution. To construe the process, when enacted, and to declare its. effect, is purely judicial.

Speaking of the affidavits of assessors to be annexed to their assessment rolls, the court said in Marsh v. Supervisors: “ The statute is a just and wise enactment to secure the integrity o£ assessments, and so to fulfill the constitutional rule; quite adequate to those ends, when the official integrity of assessors reaches the standard of the statute under which they hold their offices. The policy and justice of the provisions recited are obvious; and it would be idle to enlarge upon their necessity to such just and equal rule of assessment as will satisfy the uniform rule of taxation. The oath required of assessors, that they have made the assessment in strict compliance with the statute, is manifestly intended to secure the fundamental rule of taxation against indolence, carelessness, evasion and willfulness, as well as against partiality and fraud, of those officers. The affidavit is the evidence, and the only evidence, accompanying the assessment, that values have besen arrived at justly and properly, in compliance with the statute, and to fulfill the rule of the constitution. And the affidavit therefore appears to be made' by the statute of the substance, and not of the form, of the assessment roll.

“ There appears to be, indeed, no other check upon the conscience of the assessor: Few other ministerial officers have opportunity to disregard a great constitutional principle, or to violate grave private rights, with so much impunity. And the statute therefore puts this check upon him, bringing his official duty directly to the test of his personal truth and integrity. An assessor who has faithfully performed his duty, as the statute gives it to him to perform, cannot hesitate to make the affidavit. An assessor who hesitates to make the affidavit, hesitates because he has not performed his duty; because he has not followed the process given by the statute, to secure the fair and uniform rule of assessment essential to a just and constitutional tax. In other words, an assessor who fails to make the affidavit, impeaches the integrity of his own assessment.”

Whether it would be wise or not, however, to dispense with the affidavit, it rests entirely in legislative discretion to determine. But while the statute is mandatory, the court would be obliged to hold, as it did in Marsh v. Supervisors, that failure of the affidavit is failure of the valid assessment.

So of the verified statement required to be rendered by clerks of school districts to town clerks, for the assessment of school tax. The legislature may dispense with it; but until it does, or so shapes the requirement as to make it directory only, the failure to render the statement is fatal to the tax. Matteson v. Mosendale, 37 Wis., 254.

3. Some criticism was made upon secs. 6, 7, 8 and 9. But these are provisions of limitation- entirely within legislative discretion, so that they give — as they do — reasonable opportunity for bringing actions.

No objections were made to secs. 10, 11, 13 or 14; and it is not apparent that any could be justly made.

Section 10 authorizes certain county officers to compromise with parties for taxes returned as delinquent, when it is claimed that such taxes are illegal, and there is reasonable cause to believe them so. This may be a dangerous power, subject to great abuse. But no ground was suggested, or is perceived, for holding it invalid. The policy of the provision, rests wholly with the legislature.

■4. Sec. 12 in effect disqualifies assessors as witnesses to impeach their own assessments. It was suggested that this was an unwise and oppressive provision. It is not for the court to determine that. It was clearly within legislative power, whether the discretion was wisely used or not. It puts an assessor in precisely the attitude in which the common law puts a juror. Birchard v. Booth, 4 Wis., 67. And this the legislature could surely do.

5. Secs. 3, 4 and 5 are kindred and to some extent cumulative provisions. This appeal chiefly involves sec. 5, though a question is also made on sec. 3.

There was some discussion at the bar on the question whether these sections applied to cases affecting the groundwork of a tax. Sec. 3 in terms applies to all actions involving an assessment, tax or tax proceeding, on the ground that it is for any reason invalid, except when it is claimed that the tax has been paid dr that the property taxed is exempt. Sec. 4 applies to actions where it shall appear that the assessment is void. Sec. 5 applies to actions to avoid an assessment, tax or tax proceeding for any of the causes mentioned in the statute. There is, therefore, no room for doubt that the three sections were designed to apply, and in terms do apply, to all cases within their provisions which involve the groundwork of a tax, except the single case of exemption from taxation.

The three sections appear to have a common object: that is, to impose conditions upon certain actions brought on foot of illegal taxes, and upon defenses against actions to foreclose tax deeds. They appear generally to proceed on the principle that one who assails a tax proceeding in such cases, must do it upon condition of paying the just share of tax chargeable to Mm or his property, and providing different modes of ascertaining such share.

It is undoubtedly true that, as a general rule, one should not be permitted to maintain an action to avoid a 'tax proceeding, without paying his just share of the tax, when that is ascertained. This principle is recognized in all the cases. And so far as these sections apply to mere irregularities in a tax proceeding, there might be little difficulty in enforcing them. For, in such cases, the proper amount of tax is already ascertained.

“ Governments cannot exist without their revenues, and taxes are levied and contributions enforced upon the principle that they are but just returns for the protection and advantages derived from them. In this sense, a proper tax — one which is just and correct in principle — is a debt due to the government, which the owner of property has no more right in equity and conscience to withhold, than the most sacred debt of a private nature.” Warden v. Supervisors, 14 Wis., 618. “But the debt is liquidated and matures only upon a valid exercise of the taxing power.” Marsh v. Supervisors, supra. When,, however, an exercise of the taxing power fails for any cause, and the tax is reassessed, it is a debt due upon the reassessment 'as from the time when it should have been first assessed. Peters v. Myers, 22 Wis., 602.

And when, after action brought to avoid a tax proceeding, a reassessment shall have liquidated the just and true amount of. the tax in controversy, the court might perhaps without statute, the legislature certainly can, make payment of the liquidated amount of tax a condition of relief. This appears to have been to some extent the principle of the sections under consideration.

The difficulty in section 3, in cases where the objection goes to the groundwork of the tax, is that it departs from the principle. Its provisions do not go upon reassessment or liquidation of the just and equal share of tax. The section requires the party impeaching the tax, within such time as the court shall order, and before he shall be entitled to judgment, to offer to pay his just and equitable proportion of the tax, to be determined by himself; further providing that if the offer be accepted, the suit shall be dismissed; if not accepted, and the offer shall be found not equal to his just share of tax, judgment shall go against him for such just share; but if the offer be found equal to his just share of tax, he shall have judgment for costs.

It is quite obvious that there are some defects of detail in the provisions for judgment; but these might be readily corrected, and would not vitiate the section in cases where the judgment is provided for. Rut there are difficulties in the section which cannot be corrected.

Tender has no proper application to unliquidated damages. It may be that, in some cases, the legislature might authorize or require tender to cover unliquidated amounts. But the legislature cannot require a party aggrieved by an apparent tax proceeding, when no valid tax has been levied, to make a tender or offer, at his peril, of his just share of tax, as a condition of relief; to purchase Ms remedy against the oppression of a tax, where the groundwork on which the taxing power rests is wanting to support any tax.

It is the duty of persons subject to taxation to pay their just taxes when liquidated and levied; but they are not bound to tax themselves. • It is the duty of the public to liquidate each person’s just share of every tax, by constitutional exercise of the taxing power. And no statute can impose the burden upon a taxpayer of liquidating his own tax.

The section requires a party seeking relief against a tax where the groundwork is wanting, where in law no tax has been liquidated or levied, to guess at the amount which would have been his share of a valid tax, had one been liquidated and levied; or to make an assessment of his taxing district, and charge himself with his just share of tax, at his own peril; or be denied his remedy against the unconstitutional exercise of the taxing power. No such burden can be constitutionally laid upon him as a condition of his remedy, as the price of justice.

This is not said of cases of mere irregularity. It is said of taxes levied for unlawful purposes, which create no duty to pay; and of taxes apparently .levied for lawful purposes, but not founded on constitutional assessment. In these cases there is in law no tax. “ A tax, to be valid under the constitution, must proceed upon a regular, fair and equal assessment of the property to be taxed, made by the officers, in the manner, and with the securities and solemnities, provided by statute. These last the legislature may make and alter at pleasure; but no statute can dispense with assessment, or with its essential fairness and equality. For, without these, taxes cannot go upon a uniform rule. The uniformity of the rule may be broken, as well by inequality of assessment of values to be taxed, as by inequality of rule in the tax itself. And no tax upon property can be supported which does not proceed upon valid assessment, legally made upon uniform rule.” Marsh v. Supervisors, supra.

The radical difficulty in the section appears to be an assumption of duty to pay tax before any tax has been lawfully and constitutionally laid. In such cases, “the trouble is that there is no tax; therefore no apportionment of the party’s share of a tax.” Marsh v. Supervisors, supra.

Another difficulty in the section, perhaps less formidable, is, that after a party mates his offer and it is not accepted, the duty of making an assessment of the taxing, district is virtually devolved upon the court. Eor that appears to be necessary in order to determine the sufficiency of the offer made. But this need not be considered, because the objections already stated are fatal to the validity of the section.

Section 4 relates to actions for the recovery of money paid for taxes. It provides that if, upon trial, the assessment upon which the taxes were levied is found to be void, the court shall not render judgment, but shall continue the action for a reasonable time, to permit a reassessment; and that judgment shall be entered for either party as the reassessment shall disclose whether or not the plaintiff had paid more than his just share of tax.

This section does not, like section 5, declare 'that the reassessment shall be conclusive. But it gives no express right to the party to litigate, or express power to the court to inquire, whether or not the reassessment is justly and equally made under the uniform rule of the constitution. Of course the reassessment may be as great a fraud upon the constitution and the law, as the original assessment. And it is at least doubtful whether the court, under this section, would take power to inquire into the fact. But the validity of such a provision will be more fully discussed in considering section 5.

The latter section provides that in all actions in which a party shall seek to avoid any assessment, tax or tax proceeding, if the court shall be of opinion that, for any reason affecting the groundwork of the tax, it should be avoided, it shall stay proceedings until a reassessment can be had; and that such reassessment, when made, shall be conclusive evidence of the amount of tax justly chargeable to the party seeking to avoid the tax on Ms property, and to all other persons seeking to avoid it. There is some little obscurity in ■ the language, but this appears to be the fair construction of the section.

There the section stops, except a proviso which is immaterial to the questions here. It was presumably intended that the reassessment should impose upon the party seeking relief against the tax, payment of his just share of tax, appearing by the reassessment, as a condition of relief. This indeed is not expressed. Rut taking the whole statute together, this might not be too strained a construction of it. And this construction will be assumed in considering the section, because otherwise the section would be inoperative for uncertainty.

Reassessments, upon failure of the first assessment, have been frequently upheld in this court. Tallman v. Janesville, 17 Wis., 71; Cross v. Milwaukee, 19 id., 509; Dill v. Roberts, 30 id., 178; Whittaker v. Janesville, 33 id., 76; Marsh v. Supervisors, supra. And indeed there never could have been grave doubt of their validity.

It has already been said that when a just and valid reassessment has been made, pendente lite, to avoid a tax upon the ground that the former assessment was invalid, it is competent for a statute to make payment of the just and liquidated amount of tax appearing by the reassessment a condition of judgment against the invalid tax. This is in accordance with well settled principles. Warden v. Supervisors, 14 Wis., 618; Kellogg v. Oshkosh, id., 623; Myrick v. LaCrosse, 17 Wis., 442; Howes v. Racine, 21 Wis., 514.

And, on the same principle, it is difficult to see why the legislature may not provide for a reassessment, pendente lite, to impose the same condition on a party seeking relief against a tax, upon the ground that there has been no valid assessment.

The objection made to this view is, that the reassessment delays the proceeding, and therefore violates the constitutional declaration that every person is entitled to a certain remedy in the law, promptly and without delay, conformably to the law. It is sufficient to say that the delay complained of may be essential to full justice, which may be authorized con-formably to law; and that no one has a right to complain of the law’s delay in enforcing his right, until his adversary’s correlative right can also be enforced.

As already remarked, a reassessment may be open to the same objections as the first assessment. Bo one can be held to pay a tax which does not rest on a just and equal assessment, in compliance with the constitutional rule of uniformity. A reassessment must therefore be always open to the same impeachment as the original assessment.

And this is the difficulty with section 5. The statute not only makes it evidence, but conclusive evidence, of the tax chargeable against the party or his property. It might doubtless have been made competent evidence, as the original assessment was until impeached.

But it is no more within the legislative power to make the reassessment conclusive evidence of the tax, than to make the original assessment conclusive. Being conclusive evidence, it may well operate to make the payment of one tax wholly void, because not resting on the constitutional groundwork, a condition of relief against another.

The very able gentleman who argued this appeal for the appellants at the bar, for whose opinion the court entertains great deference, did not contend that the section, in this construction, could be upheld. He is quite too intelligent a lawyer to take such ground. But he endeavored, with great ability, to avoid the construction which has been given to the section. He argued that only reassessment in the manner specified in section 1, which might well be construed as meaning in the manner prescribed by law — that is to say, a just and equal reassessment, complying with the constitutional rule of uniformity — is declared to be conclusive. It appears to the court that such would be a very forced construction, doing violence to the language of the section and to the manifest intent of the legislature. The section indeed directs the reassessment to be made in conformity with the constitution and laws. But quite independently of the manner of making the reassessment, it declares the actual reassessment made to be conclusive. Had the intention of the legislature been such as the learned counsel contends, the reassessment would have been declared evidence only, that is, jprima facie evidence. If the reassessment should prove upon investigation to have been legally and constitutionally made, it would have been conclusive evidence ex proprio vigore. Conclusive evidence, in the sense in which the words are used in the section, imply a presumption of law which cannot be rebutted; precluding all inquiry how the reassessment was in fact made. And the words have no effect in the section, unless it be to make the reassessment, however made, an absolute and final determination of the tax chargeable to the party or his property. • \

Much of this discussion applies, though with less force, tc section 4. The application can readily be made, without repe tition here.

The argument of counsel was subtle, able and interesting And the co'urt struggled to adopt it, in order to sustain the section; but the struggle was overborne by the language of the section and its manifest purpose.

Both section 4 and section 5 might be sustained, if they gave to the party .the right to impeach the reassessment on the same grounds as the assessment, and provided for the process of conducting the inquiry. The latter might easily be done in suits in equity;,it would be more difficult in actions at law. But as the sections stand, it would be difficult to support section 4, and is impossible to support section 5.

It is proper to say here that, though it might be possible to import by construction into sections 4 and 5 the exception in section 3, of. cases setting up the payment of tax or the exemption of property taxed, there is no exception, in any of the sections, of cases setting up illegality of the purpose for which a tax is levied. None of these cases could possibly require reassessment or payment as a condition of relief.

So far as these conclusions hold the statute before the court to be in conflict with the constitution, the court has come to them with great reluctance. It has borne in mind throughout this investigation, what it said of another statute in Attorney General v. Eau Claire, 37 Wis., 400: “ We owe great deference to the legislative authority. It is our duty to give effect to all its enactments, according to its intention, as far as we have constitutional right and power. And to that end it behooves us, as far as we are able, to place such a construction on statutes as will reconcile them to the constitution; and to give them effective operation, under the constitution, according to the intention with which they are passed. It would be a palpable violation of judicial duty and propriety to seek in a statute a construction in conflict with the constitution or with the object of its enactment; or to admit such a construction, when the statute is fairly susceptible of another in accord with the constitution and the legislative intention. . . . But we cannot overlook our duty to the constitution, or enforce a statute which will not fairly bear a construction consistent with the safeguards of that paramount instrument, which binds both legislature and judiciary, and to which their powers and duties and ours are alike subordinate.”

By the Court. — The judgment of the court below is affirmed.