Hixon v. Oneida County

PiNNey, J. There are cross appeals in this cause, each party having appealed from the entire judgment. The defendants insist that the plaintiffs cannot maintain their appeal, for the reason that they waived the right to appeal by complying with the terms of the finding of the court to the effect that they were entitled to relief only upon paying into court the sum of $3,906.56, the balance of the taxes complained of, after deducting the items found by the court to be illegal, namely, the items for the towns of Ackley and Merrill, amounting on plaintiffs’ lands to $434.54, and by taking the benefit of the decision by entering and perfecting judgment accordingly. 1. The right of appeal is favored in law, and it will not be held to have been waived except upon clear and decisive grounds. Sloane v. Anderson, 57 Wis. 128, 129; Chapman v. Sutton, 68 Wis. 661. Payment of a judgment is not a waiver of the right to bring an appeal or writ of error to reverse it. This case is clearly distinguishable from Webster-Glover L. & M. Co. v. St. Croix Co. 71 Wis. 317, where the judgment contained provisions in favor of the party who appealed as well as provisions against him, and he, after the entry of judgment, accepted the money, adjudged to him and then appealed from the provisions of the judgment against him. The court held that by accepting the fruits of the judgment he waived his right of appeal. The plaintiff could not appeal from the finding or decision. Webster-Glover L. & M. Co. v. St. Croix Co. 63 Wis. 647; Bourgeois v. Schrage, 69 Wis. 316. Here the court had decided that the plaintiffs were entitled to a less favorable judgment than they had asked, and to that only upon condition of paying into court, “ for the use and benefit of the parties entitled thereto,” the sum mentioned; and it is recited in the — 530 — judgment that the payment into court of the sum required was under protest. The plaintiffs had a right to appeal from a judgment in their favor, and the payment of this money into court was with the view of perfecting the less favorable judgment awarded to them. The fact that they perfected such judgment, and paid money into court to that end, ought not to be construed as a waiver of their right to appeal from it and obtain a more favorable one, and to reclaim the money so paid in, or of the party who might have received it. Money paid under a judgment afterwards reversed may be recovered back. If, after the judgment had been perfected, the plaintiffs had accepted the benefit of any provision of it, they would properly be held to have waived their right of appeal, as in Webster-Glover L. & M. Co. v. St. Croix Co. 71 Wis. 317. 2. It is also insisted that the defendants have waived and eannot maintain their appeal, by reason of having withdrawn the money thus paid in; but there is nothing in the record to sustain the contention. The bill of exceptions states that the money was paid to the clerk of the court “ and still remains in court.” There is nothing krshow that it has been withdrawn. Both appeals are therefore properly before the court for determination. 3. The action was commenced before the sale of the lands . in question, and, the injunction awarded having been dissolved, they were again advertised for sale and sold; and it is said that the certificates of sale have been assigned by the county to one Wilcox, and that he is a necessary party to a decree annulling them; but Wilcox was a purchaser pendente lite, and took only such rights as the county had, and he is in no better position. These certificates are not negotiable in the sense that the assignee of them acquires any better right than the purchaser, and a judgment annulling the tax will necessarily destroy the tax certificates and defeat any tax deed on them. T. B. Scott Lumbar Co. v. Oneida, Co. 72 Wis. 158. — 531 — 4. The counsel for plaintiffs, in an able and elaborate brief, has assailed the doctrine laid down by this court at an early day, that a court of equity will not interfere to declare a tax invalid and restrain its collection, unless the. objections to the proceedings are snob, as go to the very groundwork of the tax and necessarily affect materially its principle and show that it must necessarily be unjust- and unequal; that it is not enough to show that the tax proceedings are irregular or void, but it must also appear-that they are inequitable and that it will be against conscience to let them go on; that courts of equity do not sit to reverse or correct errors and mistakes of law, and that, to be entitled to their assistance, the party applying must show that he is in danger of unjustly losing some substantial right, and that he is in no fault. Mills v. Gleason, 11 Wis. 497; Warden v. Fond du Lac Co. 14 Wis. 618, 621; Miltimore v. Rock Co. 15 Wis. 9; Dean v. Gleason, 16 Wis. 1; Bond v. Kenosha, 17 Wis. 284; Mills v. Johnson, 17 Wis. 598; Crane v. Janesville, 20 Wis. 305; Ballard v. Appleton, 26 Wis. 67; Whittaker v. Janesville, 33 Wis. 76; Mills v. Charleton, 29 Wis. 400,— and many other cases in this court and in other courts of the highest respectability,— are to the same effect. It is true that these cases were understood to have been discredited and departed from to some extent by the case of Marsh v. Clark Co. 42 Wis. 502, and the succeeding cases of Philleo v. Hiles, 42 Wis. 527; Tierney v. Union L. Co. 47 Wis. 248; Schettler v. Ft. Howard, 43 Wis. 48; Goff v. Outagamie Co. 43 Wis. 55; and Plumer v. Marathon Co. 46 Wis. 163; and it is upon the strength of these cases that the plaintiffs’ counsel in the main founds his argument upon their appeal; but in very many subsequent cases the authority of the former cases has been fully restored, and frequently restated and vindicated with increased vigor and clearness. The whole subject was considered, and elaborately and forcibly discussed. — 532 — by Mr. Justice Taylor, in Fifield v. Marinette Co. 62 Wis. 532, and the views there expressed have been adhered to and followed in many cases. We see no reason for doubting or departing from the doctrine as originally established in this state, and we cannot agree with counsel for appellants that the principles thus laid down are at all obscure or uncertain, o.r that there is any reason for misapprehension of the rule for granting relief in such cases, since the cases of Fifield v. Marinette Co. 62 Wis. 532; Wis. Cent. R. Co. v. Lincoln Co. 67 Wis. 478, 481; Canfield v. Bayfield Co. 74 Wis. 60, 64; Boorman v. Juneau Co. 76 Wis. 550; Green Bay & M. Canal Co. v. Outagamie Co. 76 Wis. 588; Kaehler v. Dobberpuhl, 56 Wis. 480; Wis. Cent. R. Co. v. Ashland Co. 81 Wis. 1,— were decided. 5. The objections taken to the assessment are various, but, within the authorities referred to, we must hold they afford no ground for relief. The claim that the proof shows that there was any intentional omission of property from the assessment is negatived by the sixth and seventh findings of the court, which we think are in accordance with the evidence, and so, also, as to the claim that there was an intentional undervaluation of real and personal property in the town of Eagle River. The evidence on the subject of undervaluation of real estate is confined wholly to about eighteen lots in the village of Eagle River, and consists of the testimony of two business men of that place. The fact that in relation to the value of those lots they differed very considerably from the judgment of the assessor and board of review is not sufficient to impeach the integrity offihe assessment, or to show meditated or intentional wrong, and is not inconsistent with the finding of the court, after hearing the witnesses testify, in favor of the bona fides of the assessment; and the same observations hold good in relation to alleged undervaluation of personal property. The evidence wholly fails to show that the assessment as an en — 533 — tirety, the- plaintiffs’ property included, was unfair or inequitable so far as they are concerned, or that there was any intentional undervaluation of property, or any illegal or improper classification of property for the purposes of assessment. 6. The objections to the procéedings of the board of review depend upon the eighth and ninth findings, and are, in substance, that the board of review changed valuations fixed by the assessor without lawful evidence; that the board used unverified, but true, copies of land inspectors’ reports, the original' or duly certified copies of which would have been competent evidence (T. B. Scott Lumber Co. v. Oneida Co. 72 Wis. 158), and the record of proceedings of the board was imperfectly or inartificially kept. The changes made by the board increased the relative valuation of the plaintiffs’ lands not to exceed $300, and there is nothing to show that the result arrived at by the board was unjust or inequitable; besides, the increased amount of plaintiffs’ taxes on their 250 or more tracts of land, when distributed between them, would be so trifling and inconsiderable as not to warrant the interposition of the discretionary power of a.court of equity in gran ting, in junctions. The maxim, de mvnimis non eurat lex, may be fairly applied, and public policy, requires that for such trifling excess the plaintiffs should be left to their remedy at law. The board of review cannot be said to have acted arbitrarily and without any evidence, though that which they did have was not technically verified so as to be admissible in a court of law. We are unable to see that the plaintiffs have suffered or are exposed to injury by reason of the defect in the lists. The necessary absence of the town clerk on account of his father’s death during some of the days the board was in session, and the fact that his brother was authorized by the board to act and did act as their clerk, keeping minutes of their proceedings, etc., but not taking any part in their — 534 — deliberations or voting on any question, did not, we think, impair the validity of the proceedings of the board, and does not afford any equitable ground for the plaintiffs to avoid payment of their taxes. The court found that the temporary clerk did not influence the action of the board. 7. The objections to the manner in which the assessment roll, and the tax roll founded on it, were made out, and to the unsigned proceedings of town meetings and proceedings ' of the board of review, are readily understood by reference to the fourth and ninth findings. The assessment seems to have been made intelligible and certain, and the minutes and proceedings of the town meetings and of the board of review, though imperfectly prepared, were in the handwriting of the clerk and kept in his office; and it is found that as to all the irregularities in the assessment roll the assessor acted in good faith, following the practice that -had prevailed, that no inconvenience or embarrassment has thereby resulted to the plaintiffs, and no error or defect in the roll has resulted in charging them with any more than their just and equitable portion of the taxes of said town for that year. These and kindred objections form no ground for relief in equity. They are like those made to unsigned or unverified assessment rolls. Wis. Cent. R. Co. v. Lincoln Co. 67 Wis. 478. And so, also, that the lands were not put down as belonging to some particular owner, or to “Unknown.” Wis. Cent. R. Co. v. Price Co. 64 Wis. 580. The action of the county board, as set forth in the twenty-sixth finding, though not an exact was a substantial compliance with R. S. sec. 1073. The objections taken to it, like those just considered, are not available in equity. There is nothing to show that the plaintiffs have been injuriously affected by want of form or formal certification of the action of the county board. The resolution contains the substance required by the statute, was signed by the members of the board, and filed with the county clerk, and — 535 — recorded by him in the records of the proceedings of the board. 8. The objection that the court refused to hold the plaintiffs’ taxes invalid by reason of the levy of-$3,500 as a tax for bridges, is based upon the fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth findings. The resolution adopted by the supervisors of the town, March 19, 1889, was that $3,500 be raised to build bridges for that year, and that it be submitted to a vote at the annual town meeting to be held the 2d of April, as provided by secs. 1320, 1321, R. S.,- and specified the manner of voting, and we think is to be construed as a proposition to levy a tax. The building of the brjdges was doubtless a public necessity. The town paid for them, and the levy of the $3,500 was but to reimburse it for using its funds in constructing the bridges. The amount levied- on the plaintiffs’ lands is, as it appears, no more than their just‘ share of this public burden which has been, it seems, discharged by nearly every property owner in the town except the plaintiffs. There is nothing to show that there has been any inequitable or unjust apportionment of this sum, used for a purpose which the town had authority to accomplish. It may be conceded that the levy was void, but .there is not the slightest evidence to show that it was inequitable. At law, the contention of the plaintiffs in regard to it would undoubtedly prevail. The plaintiffs might have obtained a remedy against the levy of this tax by certiorari, and they still have their remedy at law. They have no right, however, to come into equity- and ask that the tax be enjoined, simply upon showing that it is illegal. , A court of equity will not enjoin the collection of a judgment void because the court had no jurisdiction to render it. This was so held in Stokes v. Knarr, 11 Wis. 389. It was there held .that, “ if a party can say nothing against the justice of a judgment, can give no reason why in equity — 536 — he ought not to pay it, a court of equity will not interfere, but will leave him to contend against it at law in the best way he can.” And in Warden v. Fond du Lac Co. 14 Wis. 618, the principle of Stokes v. Knarr was expressly held to be applicable to suits to restrain the collection of taxes. 0. The objection to the levy of $4,500 for school fund is that it does not appear that the items of which it was composed. were voted on separately. The twelfth finding shows that; $4,500 was voted at the annual town meeting for school fund; the school board of the town having, at a previous meeting, recommended, as required by secs. 534, 535, B. S., that the following items be raised for school purposes, viz.: Wages, $2,000; janitor, $200; wood, $200; Minocqua, $500; incidentals, $1,100; library, $180. It is made the duty of the town supervisors to present the estimates of the school board to the electors of the town at the annual town meeting. The presumption is that the estimates were presented accordingly. It was not necessary that the defendants should offer evidence to show that the statement or estimates were presented to the town meeting. The burden of showing that the tax is not only illegal but inequitable is on the plaintiffs. There is no presumption that the levy in gross embraced any sum for any particular item in excess of what is allowed by law. The minutes of the town meeting do not appear to have been produced in evidence, but merely the general statement of the appropriations. The town had the authority to raise $4,500 for school purposes as a gross sum. S. &. B. Ann. Stats, sec.430a. A failure to take a separate vote upon the different items authorized to be recommended, constituting the gross sum, would not make the plaintiffs’ taxes inequitable or unjust, although perhaps void at law. 10. The tax levied for cemetery purposes is also assailed as illegal. Subd. 12, sec. 776, B. S., gives town meetings power “ to instruct by vote the town board to purchase — 537 — grounds for a town cemetery, to limit the price to be paid, and to raise a tax for the payment.” The vote was simply to appropriate $1,000 for cemetery fund. "Whether it was intended to purchase grounds for a cemetery or to provide a fund for a cemetery already existing, is not clear. It may be that either was intended; and either would, no doubt, be within the power of the town. The town voted $1,000. That, of itself, would amount to a limit to purchase, but it appears that they only appropriated for that purpose $371. The first subdivision of sec. 776 empowers the electors to raise money for the repair and building of roads and bridges, for the support of the poor, and for defraying all other proper charges and expenses of the town, notwithstanding provision is made by sec. 1440, R. S., for devoting the proceeds of sales of lots to the payment of debts incurred by the town in fencing and embellishing cemetery grounds and the avenues leading thereto, and in defraying the necessary expenses of the management and care of the same, or for reimbursing the town for the purchase money thereof, and for no other purpose. This resource may prove entirely inadequate, and it cannot be said that the town would not have authority to levy a tax for cemetery purposes, if need be. There is no proof on the subject, and no presumption can be made against the levy. The presumption is that an exigency existed requiring' the raising of that sum. The provisions of sec. 1440 are not, in their terms, exclusive. The evidence seems to support and justify the findings of fact, and it is not necessary that the court should find as requested by the plaintiffs on some points that no evidence in relation thereto was produced. That which is not made to appear is to be taken as not existing. 11. The only question presented by the defendants’ appeal- is whether the circuit court erred in holding that collection of the amount included in the tax roll as extended for the town of Ackley and for the town of Merrill, ought — 538 — to Rave been enjoined,— whether a court of equity should enjoin the tax as void at law, without regard to the question of whether the amount so charged against the property was more than the fair share which the plaintiffs’ property ought to contribute to pay off and discharge the debts of the town of Eagle River to these towns growing out of the division of the towns of Merrill and Ackley and organization of the town of Eagle River. The facts are fully stated in the twentieth, twenty-first, and twenty-second findings, and the circuit court granted relief as to these items conditionally, as we have seen, for the reason, as stated in the finding, that “ no vote was taken at the annual town meeting in 1S89 or any town meeting to raise a tax that year to pay the indebtedness or any portion of it to said towns; ” and that “ the plaintiffs show sufficient injury to entitle them to equitable relief, when they show that the authorities are attempting to collect from them, as a tax, an item which has never been levied as a tax by any body authorized to levy it.” These items were inserted in the tax roll upon and by direction of the town supervisors, as shown by the thirteenth finding. By sec. 4, ch. 229, Laws of 1885, creating the town of Eagle River from parts of the towns of Ackley and Pine River, it is provided that “ the indebtedness to be apportioned to the town of Eagle River to bear the same ratio to that apportioned to each of the other towns hereinbefore mentioned as does the assessed valuation of that portion of the town detached bear to that situated in the town from which the said territory was detached by this act to the last assessment rolls of said towns, and the said town of Eagle River shall pay its proportion of indebtedness, ascertained as aforesaid, to the towns of Pine River and Ackley respectively.” By a subsequent act (Laws of 1885, ch. 334, sec. 2), it was enacted that “ when any territory shall be detached from any town, . . . and the same shall be — 539 — annexed to any other town, . . . the town to which the same shall be annexed . . . shall he liable to the town . . . • from which the territory was so detached for its just share of the liabilities and indebtedness, and shall receive the just share of the credits from the town . . . from which the same shall have been'detached, which shall be apportioned by ascertaining what ratio the portion detached bears to the territory from which the same was detached, and the last prior assessment shall be used as a basis in determining the same.” And by ch. 411, Laws of 1885, creating the county, of Oneida,-part of the town of Merrill was attached to the town of Eagle River. The amount due from Eagle River to Ackley was adjusted by the supervisors of the two towns, March 30, 1889, at $1,550, to be paid March 30, 1890, and an order issued for that amount. The amount due the town of Merrill from Eagle River was determined and agreed on as stated in the twenty-second finding, and was reported to and ratified by a vote of the town meeting of the town of Eagle River prior to 1889. The amounts which the town of Eagle River was required to pay the towns of Merrill and Ackley, respectively, had thus become definitely and finally liquidated. The matter of adjusting these claims was one which pertained to the duties of the town board, and could be more properly attended to and adjusted by them than •by the town meeting. By sec. 819, R. S.,.the town board has “ charge of all of the affairs of the town not by law committed to other officers,” and they are empowered to draw orders to pay the town expenses^ and “ for all other purposes except the support of the common schools,” and séc. 821 authorizes them to audit “ every account presented against the town.” Every reasonable presumption ought to be made in support of these proceedings. Tainter v. Lucas, 29 Wis. 375; Fifield v. Marinette Co. 62 Wis. 532. — 540 — And there is an utter absence of allegation or proof showing, or tending to show, that these amounts have not been adjusted on the proper basis and at just and correct amounts. The town had really no discretion as to the payment of these sums. It was bound by express statute to pay them, and as the town has no other resource for paying these claims than taxation, when once liquidated and reduced to certainty the vote of the town to levy a tax to pay them, if essential, is matter of mere form, for in substance the statutes referred to have authorized a tax to pay them. In no way whatever could the plaintiffs’ property escape its liability to contribute its just proportion to the payment of these demands. Levying and carrying out the tax was a method of apportioning this common burden, and there is nothing to show that any more than its just and equitable portion was entered under the direction of the supervisors, and carried out as a tax against the property of the plaintiffs. Nearly all the entire tax for this purpose has been paid, except the amount charged against the plaintiffs, and the plaintiffs have not'shown the least equity for the court to interfere by injunction to stay or prevent its collection. They rely only on the contention that the tax is void, that it was not charged against their lands by any body having power to levy a tax. For reasons already pointed out, “ when a tax-payer undertakes to stop the officers of the law from collecting a tax charged against his property, by a proceeding in equity, he should be required to demonstrate by his complaint (and of course by his proof) that his property is not legally or equitably changeable therewith.” Kaehler v. Dobberpuhl, 56 Wis. 486, and cases cited ante. The plaintiffs do not occupy any more. favorable position than a party seeking to enjoin a judgment at law void for want of jurisdiction, who fails to allege or show that it is also inequitable. Stokes v. Knarr, — 541 — 11 Wis. 389; Walker v. Robbins, 14 How. 584; Knox Co. v. Harshman, 133 U. S. 152, 156; Warden v. Fond du Lac Co. 14 Wis. 620. Eor these reasons we conclude that, conceding the invalidity of the tax; yet the plaintiffs have no standing in a court of equity on that ground merely, but must be left to their remedy at law. By the Gowi't.— The judgment of the circuit court is reversed on both appeals, and the cause is remanded with directions to dismiss the plaintiffs’ complaint,'and to make such order for the disposition of the money paid in court as shall be according to law.