Pratt v. Lincoln County , 61 Wis. 62 ( 1884 )

Cassoday, J.

The statute provides that in all actions tried upon issue joined in any of the courts of this state in which it is sought by either party to avoid or set aside in whole or in part any assessment or tax or tax proceeding for any of the causes provided by law, if the court shall be of the opinion, after a hearing in that behalf had, that for any reason affecting the groundwork of the tax and affecting all the property in any town, said assessment, tax, or tax proceeding should be set aside, it shall immediately stay all proceedings in such action until a reassessment of the property of such town can be made. Sec. 12105, N. S., as amended by sec. 5, ch. 255, Laws of 1879, and sec. 1, ch. 128, Laws of 1881.

In Potter v. Brown Co. 56 Wis. 272, there was not only no answer or demurrer, but no appearance in the case, and of course no findings of fact. The case is clearly distinguishable from the one before us. Here the order was not made until “after a, hearing in that behalf had,” within the meaning of sec. 12105. Such a “hearing” was the hearing upon the demurrer. “An issue of law arises upon a demurrer to the complaint.” Sec. 2838, R. S. “ A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.” Sec. 2842, R. S. “ An issue of law is triable by the court.” Sec. 2843, R. S. Had there been an answer raising an issue of fact, it would also have been necessarily “ tried by the court.” Ibid.

The judicial examination of the issues between the parties arming upon the demurrer to the complaint was a “ trial,” within the statutory definition. Sec. 2842, R. S. The action was therefore “tried upon issue joined,” within the meaning of sec. 12105. But that section is not satisfied by eyery trial of that nature. It must be a trial in an action, in which it is sought to avoid or set aside, in whole or in part, an assessment, tax,'or tax proceeding, for any of the causes provided by law, and “after a hearing in that behalf had.” As the demurrer went to the substance of the complaint, the hearing thereon was a “ hearing in that behalf had.” It being for causes provided by law, and the court being of the opinion, after such hearing, that, for reasons affecting the groundwork of the tax and affecting all the property in the town of Pine_ River, the assessment, tax, and tax proceedings therein should be set aside, it properly stayed all proceedings in the action until a reassessment of the property of that town could be made.

But the real contention is that the complaint alleges too much, in that it alleges, in effect, that the lands designated-as being in the so-called town of Pine River were not, and. none of the same were, situated in that town, and that saidl town of Pine River was not, and never had been, a legally constituted nor a legally organized town, and never had any existence as one of the towns-of Lincoln county, and that no part of the said lands was in the year 1881, nor at any time, liable to taxation in or by said so-called town of Pine Eiver, nor in any-of said towns. .The learned counsel for the plaintiffs strenuously insist that these allegations were all admitted to be true by the interposition of the demurrer.

The town of Pine Eiver was created and organized under secs. 2, 6, ch. 241, Laws-of 1876. The existence and legality of the town was sustained in Cathcart v. Comstock, 56 Wis. 604 et seq. It was also reorganized in ch. 50, Laws of 1811; ch. 170, Laws of 1879; ch. 116, Laws of 1881. The lands designated in the complaint as being in the town of Pine Eiver seem to be within the boundaries of that town as thus fixed: These several acts of the legislature were not private but public acts. Oathcart v. ComstocJc, 56 Wis. 609. The court takes judicial notice of them. The demurrer simply raised the question of their legality. We do not think there is anything to the contrary in Smith v. Sherry, 54 Wis. 114. There the county board-attempted to change the boundary of the town, and the- evidence showed just what was done in that direction. The case is clearly distinguishable from the one before us. The failure to allege in the complaint any fact showing the non-existence of the town is more like the failure to furnish the requisite proofs, as in Haseltine v. Simpson, 58 Wis. 585. To put in issue the existence of the town as a matter of fact, the complaint should have stated facts from which such conclusion could have been drawn, and not the mere conclusion itself. Mere general allegations of nonexistence, or illegality, or want of organization, is not enough, in the absence of any statement of facts from which the. court may determine, as a conclusion of law from the facts stated, such non-existence, illegality, or want of organization. This is an elementary principle in the law of pleading. Without any special examination, we refer to a few decisions on the general principle from this and other courts. Supervisors v. Decker, 30 Wis. 624; Quinney v. Stockbridge, 33 Wis. 505; Feiten v. Milwaukee, 47 Wis. 494; Wallingford v. Mutual Society, 34 Moak’s Eng. Rep. 65; Comm. Bank v. Rochester, 41 Barb. 341; S. C. affirmed, 41 N. Y. 619; Lilly v. Rosekrans, 55 Barb. 204. The assessment being defective, as found, there can be no good reason why the taxes for that year should not be reassessed. If the plaintiffs desire to Contest the validity of such reassessments when made, the law affords them the most ample opportunity. We have confined our remarks to the town of Pine Eiver, because that is the only town in which the reassessment was ordered.

By the Gourt.— The order of the circuit court is affirmed.