Tierney v. Union Lumbering Co.

Lyon, J*. The principal question ■ presented by this appeal is: "Was the deposit required by'sec. 38, ch. 22, Laws of 1859, essential to the right of the defendant to interpose the defenses stated in the answer? The judgment of this court in Philleo v. Hiles, 42 Wis., 527, resolves this question in the negative. The facts of the two cases are very similar, and the cases are not distinguishable in principle. The defense proposed in Philleo v. Hiles, and the defense proved in this case, go to the very groundwork of the tax proceedings, not upon mere irregularity; and it is settled that to sustain such a defense no deposit is or can he required. Nothing can profitably be added to what is said on this subject by the chief justice in Phillco v. Hiles, supra; in Marsh v. The Supervisors of Clark County, 42 Wis., 502; and in Plumer v. The Supervisors of Marathon County, 46 Wis., 163. These cases, and others therein cited, demonstrate the invalidity of assessments made, as was the assessment under consideration, in willful disregard of the uniform rule of the constitution, and also of assessments not verified by the affidavit of the assessor as required by the statute. It is claimed that the deposit is required by section 18, ch. 8 of the charter of the city of Chippewa Falls. Laws of 1873, ch. 169, p. 376. But it is clear that no provision of the charter can operate to require a deposit in a case like this. The section can be sustained as a valid enactment only as the validity of section 38 of the act of 1859 was upheld; that is, by restricting its operation to cases of mere irregularity. Philleo v. Hiles, supra. It is assigned as error that the assessor who made the assessment in question, was allowed to testify on the trial that he assessed all the property described in the assessment roll at one-third its actual value. It is said that this is a violation of [251] the statute, which provides that “ no assessor shall be allowed in any court or place, by his oath or testimony, to contradict or impeach any affidavit or certificate made or signed by him as such assessor.” Laws of 1878, ch. 834, sec. 12 (E. S., sec. 1063). We think otherwise. ’ The assessor made no affidavit; hence his testimony did not impeach or contradict his affidavit. But, however this may be, the failure to verify the assessment roll as required by law is of itself fatal to the validity of the tax proceedings which resulted in the tax deed to the plaintiff. We conclude that the record shows no sufficient reason for setting aside the verdict. By the Court. — Order affirmed.