Bass v. Fond Du Lac County

Cassoday, J. The objection to the original assessments, which it is claimed rendered them respectively illegal, was the absence of the requisite affidavit of the assessor in some of the wards of the city or towns of the county. E. S., sec. 1063; Power v. Kindschi, 58 Wis., 540. Assuming that the defects existed, yet they, at most, necessitated a reassessment of the taxes for the years in question. It is now claimed, in effect, that the absence of such affidavits raised a conclusive presumption, never to be overcome by any examination, that each of such assessments was unequal and unjust, and not in accordance with the rule of uniformity, and hence could not be used or adopted as a basis of reassessment, and Marsh v. Supervisors, 42 Wis., 502, is relied upon in support of this contention. The very vigorous and forcible language of the late chief justice, in the opinion in that case, may have induced an inference not warranted by the decision itself. Those expressions, however, were more directly aimed at the inequality which was there actually made manifest; for, according to the opinion, the court “ were at first disposed to express a doubt ” whether, when the affidavit is omitted by accident, evidence might not be-'given to supply its place, in support of an assessment made in good faith and otherwise in the manner prescribed by the statute. But it was finally held that the affidavit was the evidence, and the only evi522 deuce, accompanying the assessment, that values had been, arrived at justR and properly in compliance with the statute and to fulfil the rule of the constitution, and hence that an assessor’s failure to make the requisite affidavit impeached the integrity of his own assessment. In another place the opinion states that “ the statute does not authorize an unverified, return, and the assessment roll is prima, facie positively valid or void when returned? This, we think, does not authorize the conclusion insisted upon, but merely that the absence of the affidavit is prima facie evidence that such assessment was unequal, unjust, and without uniformity. The absence of such affidavit being merely prima facie evidence of such inequality, was liable to be overcome, and the justice and uniformity of the first assessment established. The statute during the time in question, and now, in effect, makes it the duty of the county board, in case it is discovered, within six years from the day of sale of any lands or lots for the nonpayment of taxes, that the sale or certificate issued thereon is invalid, to make an order briefly stating the reason therefor, and directing the money paid for such certificate on the sale, and all subsequent charges, etc., paid by the purchaser, or his assigns, to be refunded, with interest, upon the delivery of the certificate to be canceled. R. S., secs. 1182,1184. All these things appear to have been done as to each sale and certificate before us. On making such order directing the refunding of money on account of the invalidity of any tax certificate, as above provided, then the statute, during the time in question, and now, makes it the duty of the county board, in case they are satisfied that such lots were justly taxable for such tax, or some portion thereof, to fix the amount of such tax justly chargeable thereon on each parcel thereof, and direct the same to be assessed in the, next assessment of county taxes, with interest thereon at the rate of ten' per cent, per annum from the time when such tax was due and payable, to the end of the year in which such [523] tax is levied; and the county clerk, in his next apportion-, ment of county taxes, is required to charge the same as a special tax to the town or city in which such lands are situated, speeding the particular tract of land upon which the same are to be assessed, and the amount chargeable to each parcel, and the year when the original tax was assessed, and certify the same to the clerk of the proper town or city; and the clerk receiving such certificate is required to enter the. same on the tax'roll accordingly. R. S., sec. 1186. Each of these requirements seems to have been complied with in the case before us. The contention is that the county board had no power, under that section to “fix the amount of such tax justly chargeable” upon such lots, respectively, bjr reason of the, absence of the requisite affidavits from the original assessment rolls in some of the wards of the city and some of the towns of the county, and Avithout any neAv assessment roll made upon a relisting and revaluation of the land, and hence a new apportionment by new assessors, etc. We do not think the objections'are well taken. The legislature is not bound by any constitutional provision to require such .verified assessment as a condition precedent in any case. It. may, in its discretion, dispense with such affidavit entirely.. Plumer v. Supervisors, 46 Wis., 178. Certainly, no such affidavit is required to be attached to the reassessment made under sec. 1186 or sec. 1087, R. S. The argument, of course, is that neither of those sections .authorizes such reassessment Avhen there is no such affidavit attached to the original assessment roll. But this court has recently held that a defective Aerification of the assessment by the assessor did not impeach the justice or equity of the tax, so as to prevent a reassessment under either of those sections. Kaehler v. Dobberpuhl, 56 Wis., 481. It simply impairs, or rather takes away, the prima, facie evidence of its justice and equity.: But, whether it is just and equitable or not, still depends [524] upon the fact, rather than a particular kind of evidence of the fact. The power of the county board to authorize the refunding of the money and the cancellation of the certificate, depends upon the discovery of the fact that the sale, or the certificate issued thereon, was invalid. Such discovery, followed by such refunding and cancellation, gives to the board the right to reassess under sec. 1186 only when the board is satisfied that the lands described in the certificate were justly taxable for such tax, or some portion thereof. The statute furnishes no prescribed method, and requires no particular kind of evidence, by which the board are thus to become satisfied. Being unrestricted, the investigation may undoubtedly be conducted by the board to suit themselves. Just what investigation was made, and just what evidence was present before the board, of course, does not appear. The members of the board may have made personal investigation. For aught that appears they may have taken the testimony of each of the assessors who made the original assessment rolls, and such assessors may each have sworn to all that the statute required to be stated in such affidavits. In the absence of any proof of inequality or injustice, it is enough to know that the board was satisfied that the lots in question, respectively, were justly taxable for such tax. For that purpose the board is a taxing tribunal, invested with certain discretionary powers of investigation and determination, for the purpose of enforcing a public debt justly chargeable to particular parcels of land which have unjustly escaped such burden in consequence of some informality, irregularity, or omission in the statutory requirements. The omission of the assessor’s affidavit, where the assessment is made in good faith and otherwise according to the statute, is such an irregularity. Where, as here, there is such a reassessment in consequence of such an omission, the tax-payer will not be allowed to interfere and restrain the collection of the tax without offering to pay the tax, or [525] showing its injustice or inequality, or that it is sought to be imposed in violation of law. By the Court.— The judgment of the county court is affirmed.