Town of Wauwatosa v. Gunyon

LixoN, C. J. The statute relative to the assessment of property for taxation ■ (Laws of 1865, 'ch. 538), is a very awkward and obscure one. Many of its provisions are apparently so conflicting and contradictory, that it seems most difficult to make them in any manner consistent or harmonious. We are inclined, however, to [274] the opinion that the learned counsel for the defendant is right in the construction which he puts upon sections 8, 12, 41 and 61, and to hold that the value of credits is to be fixed by the owher or -person listing the same, and that the personal property, for the valuation of which a uniform basis is to be agreed upon at a meeting of the assessors, one from each town or ward, constituting the county board of assessors, consists only of those items of personal property which are known and designated in the act as “ enumerated articles.” This construction is in keeping with the views of this court in White v. Appleton, 22 Wis, 639, and Matheson v. Mazomanie, 19 id. 191. But, notwithstanding we so far agree with the learned counsel, we differ from him with regard to the effect of the words added by the assessor in this case to the form of oath prescribed by section 41. After the words, “the full value thereof,” in the form prescribed, were inserted the words, “at the rates established by the county board of assessors.” This, it is insisted, vitiates the affidavit, and renders the return, and all proceedings had under it, null and.void. Were we to construe the clause inserted as counsel does, such might be the effect. He applies it to the valuation of all the personal property • returned, as well that which the assessor was authorized and required to value on his own sole judgment, as that which the county board of assessors were required to fix some uniform basis for valuing. We cannot give it such application. It appears to us that it was intended to apply only to those items of personal property, the value of which had been estimated by the assessor according to the uniform basis established by the county board of assessors. The oath itself, in the form prescribed by the act, is incongruous and doubtful, and, unless it is to be interpreted as implying an exception of the kind expressed by the words here inserted, no conscientious man could take it. It requires the assessor to swear, as he verily believes, that the full [275] value of 'personal property is set forth, in the annexed return: and if it is not to be understood as excepting the “enumerated articles,” the values of which are to be fixed according to the uniform basis agreed upon by the county board of assessors, and not according to the judgment of the assessor himself, and which must, in many instances, fall short of the full value, then the construction must' be that the act requires the assessor to take an oath which he knows to be false. No such construction can be adopted. And it was undoubtedly with a view to obviate the difficulties here suggested that the interlineation was made. It did not, therefore, materially vary or affect the oath, but left it as it would have been if no such words had been- inserted, and consequently did no harm. And this construction of the words inserted is in accordance with the uniform presumption in favor of the correctness of official action. The assessor is not to be presumed, if indeed it were possible for him to have done so, to have valued all personal property, including moneys, credits, annuities, merchants’ and manufacturers’ stock, • and other kinds not found among the “enumerated articles,” according to the standard fixed by the county bogrd of assessors for valuing those articles. If he did attempt such valuation, it is a matter to be established by clear and positive proof, and not a fact to be inferred from doubtful premises. The next objection is, that there was no such entry in the return, opposite the entry of personal property, as authorized the addition of fifty per centum to the valuation by the clerk of the county board of supervisors, as provided by section 42. The form of entry prescribed by section 37 is, “refused to swear.” The entry here was, “refused to answer the.questions of the assessors after being sworn.” [The sufficiency of this objection need not be considered, for the reason, as will presently be seen, that the record does not show that an addition, in the nature of a penalty, of fifty per centum to the valuation, was in fact made by the clerk of the board of supervisors.] [276] Tbe third objection is, that the provision imposing the fifty per centum is a penalty, and void, because'it is imposed without due process of law; that, being a punishment for the violation of public law, it cannot, under our constitution, be legally imposed except by pfosecution in the courts of justice, where the accused enjoys the right of being heard by himself or counsel, and meeting the witnesses face to face. This proposition is not without some well-considered authorities in its favor, and none that we are aware of against it; but as already observed, the question is not presented by the record. It does not appear that the fifty per centum was added by the clerk of the board of supervisors pursuant to the first clause of section 42. It is true that just that amount was added, which may be deemed a circumstance tending very strongly to show that it was for the penalty. But that is not enough. [The clerk had power, under the last clause of the section, to make additions where he had reason to believe that the value returned by the assessor was below the true value of the property. ]* The sum added may have been for the amount of such increased valuation, and as there is nothing in the record to show under which clause the addition was made, we cannot refer it to the former for the sake of declaring the proceeding to have been void. The last objection is, that the verdict of the jury is fatally defective. It was in these words: “We find for the plaintiff, and assess its damages at the sum of $593.89.” The proceeding was a special one, instituted before a justice of the peace, under section 81, ch. 18 of the Revised Statutes. It was prosecuted to a judgment against the defendant before the justice, pursuant to the provisions of section 82 and the amendatory acts, Laws of 1860, ch. 198, and Laws of 1866, ch. 91; and an appeal was taken by the .defendant to the county court of Mil [277] waukee county, where the above verdict was rendered, and judgment entered thereon in favor of the town. Section 85 of chapter 18 provides that the matter shall be tried in the circuit as other issues, and if the court or jury shall find on such trial that the defendant had sufficient money or property of any description, not exempt from sale for taxes, to pay the tax at the time of his examination before the justice, judgment shall be rendered against him and the sureties in the undertaking, for the amount of such tax, and for all costs, fees, disbursements, etc. It is objected that the verdict is insufficient, because the jury did not find that the defendant, at the time of his examination before the justice, had sufficient property, not exempt from sale for taxes, to pay the tax. Was an express finding to that effect necessary ? The direction is, that the matter shall be tried as other issues. In the trial of other issues, a general verdict in the form here rendered would be sufficient. It would be construed that the jury had passed upon and found all the matters in issue in favor of the party for whom the verdict was rendered. We are of opinion that this verdict must be construed in the same way, and that the jury passed upon and found these facts for the plaintiff and against the defendant. By the Qourt. — Judgment affirmed. The defendant moved for a rehearing, and the motion was disposed of at the January term, 1870. Footnotes [*] The two sentences above inclosed in brackets are modified by the opinion on the motion for a rehearing, infra.