State ex rel. Smith v. Cooper

Obtok, J. This is a common law certiorari from the circuit court for Milwaukee county, directed to the clerk of the town of Greenfield, in said county, to return to said court the record and proceedings of the board of review of assessments of said town, and to reverse the detei’mination of said board increasing the assessment of the property of the relator, James Smith. The return shows the following facts and proceedings: The relator appeared and was present at the meeting of the board, and voluntarily presented a list of mortgage securities belonging to him in said town, in addition to the property listed by him to the assessor, to the amount of $6,475, and which increased the assessment of the assessor to that amount. By this act he submitted to the jurisdiction of said board, and waived all pretended irregularities in their meeting. We shall, therefore, not consider any such objections, which 'he pretended to reserve on such appearance, and which he urges in this court. An appearance simply and solely to protest against the jurisdiction of the court is not such an appearance as waives such questions, but an appearance protesting and yet submitting voluntarily to such tribunal on the merits of the case, and presenting evidence and asking for a judgment of such tribunal in his favor on the merits of the controversy, is a waiver thereof. This is an .elementary rule, which requires no citation of authority. We.shall therefore dispose of the case on the return. [675] The relator had made out the usual statement of his taxable property, with his deductions from his taxable credits of his debts, according to sec. 1056, R. S., and returned the same to the assessor of said town. The entire value of' his taxable property, as so made out and returned by him,' was the sum of $1,695. In this statement was included the average amount of his notes, bonds, mortgages^ and other-securities for debts due or to become due, over and above the average amount of the bona fide unconditional debts owing by him, at the sum of $1,000. This statement was not verified as the law requires, but it was nevertheless the voluntary statement of the relator, by which he is' bound and estopped as much as if it had been verified. After presenting to the board said verified statement of mortgage securities not included in the statement to the assessor, the relator claimed orally that he was entitled to a much greater deduction than appeared upon his statement to the assessor. The knowledge of such debts of the taxpayer is not presumed to be in the board of review, but in the tax-payer himself, and after the relator had presented his additional list of property liable to taxation, consisting of such credits, he held the affirmative, and it was his duty-to present the evidence thereof to the board. He presented no competent or sufficient evidence of such debts, and, besides that, he refused to be sworn and examined in relation thereto on the request of the board. ■ The ex parte affidavit of Thomas ~W. Smith was no evidence at all of such fact, for he does not pretend that he personally knew anything about it. The relator not having presented any proof of any of his indebtedness over and above that for which he was allowed on his statement to the assessor, the board, could do nothing less than to add to his assessment the additional amount so made out under his oath, voluntarily and unconditionally, and presented to them, and such was their final determination. This is really all of the record, or that [676] legitimatety belonged to tbe record. The other facts returned by the clerk consisted of a mere colloquy between the relator and the board, but therein there cannot be found any offer upon the part of the relator to present any competent or sufficient proof or evidence of any more of his debts which ought to have beeen deducted from his credits than appeared upon his statement to the assessor. The board were necessarily left to make a mere computation and add, as they did, to the $1,695 returned by him to the assessor the additional amount of $6,475, which he so voluntarily and unconditionally admitted to the board, ought to be so added by his own verified statement thereof presented to them by him. The colloquy above referred to was substantially as. follows : The assessor had consulted the register’s books of the county as to the mortgages owned and held by the relator at the time he made the assessment, and found that an additional amount of credits ought to have been assessed to the relator, in nearly, or about, the sum of $30,000. This list, made out by the assessor, but not as a part of his return of assessments, became the subject of conversation between the relator and the board. Thereupon the relator was requested by the board to present a list of his debts, which he claimed ought to be deducted from his credits, and to be sworn and examined in relation thereto. As to such debts as he owed to persons within that town he offered to present such a list,’ if the board would pledge themselves to keep the same secret, so that they might not be taxed. As to such debts as he owed to persons outside of said town, he offered to procure the affidavit of each one of his said creditors, and present them to the board, if they would give time for the space of ten days in which to do so. These propositions were, of course, rejected by the board, and this was the end of the matter. The $30,000 of mortgages found by the assessor upon the books of the county register was not added [677] to the assessment, as probably ought to have been done, but the relator ought not to complain of that, at least. It will be seen by this that the case of the relator presents not a single redeeming feature of justice, moral merit, or equity. He virtually admitted that he had made an erroneous return of his property to the assessor, by his sworn-to statement made to the board, and his refusal to be sworn and to be examined, or to present even a verified statement in respect to his debts, by the apparent fear that they might be taxed to himself or others as the owners or holders thereof, and his unseemly propositions to the board conditional upon their violation of duty, most emphatically condemn his case in a court of equity. Besides this, it did not, and does not, appear that his assessment finally made was unfair or unjust or inequitable to him in any particular, but the impression is almost irresistible that he was not assessed as much as he should have been. The relator is asking relief from an improper assessment in view of taxation. In such a case he must show equity in his behalf, and not attempt to evade just taxation. Knapp v. Heller, 32 Wis., 469; Wilson v. Heller, id., 457; State ex rel. Town of Manitowoc v. County Clerk, ante, p. 15; Warner v. Knox, 50 Wis., 436. The language of the present chief justice, in Steele v. Dunham, 26 Wis., 393, in a similar case, is most appropriate in this: “ The duties which these officers are called upon to perform are frequently most difficult, delicate, and embarrassing. The public interests require that all property not exempt should be assessed at its true value for taxation. But many persons will resort to any expedient to prevent all their taxable property from being assessed, or, if assessed at all, from being assessed at its true valuation. They will deceive assessors, and intimidate and overawe boards of equalization, if possible,” etc. By the Court.— The judgment of the circuit court is «reversed, and the cause remanded with direction to affirm the determination of the board of review.