Neu v. Voege

Maeshall, J. The question presented on this appeal is, Do the facts alleged in the petition for the writ of mandamus show that the assessor was required by law to assess the lots in Fair Haven Park separately, and that the appellant had such an interest in the performance of that duty as to entitle him to such writ to coftipel such performance? There is no contention but that such facts -were essential to the maintenance of the mandamxis proceedings by appellant, and that, if the petition sufficiently alleges their existence, the demurrer thereto and motion to quash the alternative writ were improperly sustained. Sec. 1045, R. S., relating to the assessment of lots and blocks in legally platted grounds, provides as follows: “ The .assessor shall enter upon the assessment roll, ... in regular order as to lots and blocks, ... a correct and pertinent description of each parcel of real property in the assessment district not exempt from taxation, and the number of acres in each tract containing more than one acre. When two or more lots or tracts owned by the same person are deemed by the assessor so improved or occupied with buildings as to be practically incapable of separate valuation, they may be entered as one parcel. Whenever any tract, parcel or lot of land shall have been surveyed and platted, •and a plat thereof recorded according to law, the assessor shall designate the several lots and subdivisions of such platted ground as they are fixed and designated by such plat.” This language is mandatory, and its meaning unmistakable. The duty of the assessor, under the statute, to assess lots in legally platted lands separately, subject to the one exception therein mentioned, is too plain to be open to any discussion •whatever. From the petition and affidavits presented therewith, the contents of which we do not deem it necessary to incumber this opinion by stating, it sufficiently appears that the assessor’s refusal to assess the lots in question separately was not placed upon the ground that they were within the exception named. [492] Seo. 1045, R. S., is not affected by the provisions of sec. 1048, R. S., to the effect that when contiguous lots owned by the same person are assessed together as one parcel, in violation of sec. 1045, R. S., such assessment shall not be invalid on that ground. That is in the nature of a curative provision. It operates merely to-prevent the public from being prejudiced in the collection of its revenues, by reason of the failure of the assessor to obey the commands of sec. 1045-, R. S., when no substantial injury can accrue to the individual owner of property from such failure. So the conclusion is reached that at the time the appellant requested the assessor to assess the lots in Pair Haven Park separately, and at the time of the commencement of this proceeding, it was the plain duty of the assessor to so make such assessment, and upon his refusal so to do, there being no specific legal remedy for the appellant, other than mandamus, to protect his interests if he had any in the lots, his right to resort to it is clear. It remains to be seen whether the petition shows sufficient interest of appellant in the performance by the assessor of his legal duty to assess the lots in question separately to sustain the proceedings in question. We think that must be answered in the affirmative. The appellant was the owner of a large number of tax-sale certificates on lots in the plat. Each of such certificates covered but one lot, and carried with it an interest therein sufficient to entitle appellant to redeem the lot from subsequent tax sales. In case of such subsequent sale, prior to the ripening of his certificate interest into a title by tax deed, the only way in which he could effectually protect such interest was to become the owner of the certificate issued on such subsequent sale; hence the necessity that the lots in which he was interested should be assessed separately is obvious. To be sure, the granting or refusing of a writ of mandarrms is somewhat discretionary, but when the application therefor is made by a person to [493] enforce a clear legal right; the duty sought to be enforced is positive and plain; the applicant for the writ shows that he will be substantially damaged by nonperformance of such duty; and there is no other adequate specific legal remedy for the threatened injury, and no laches on the part of such applicant, and no special reasons exist rendering a resort on his part to the remedy, under the circumstances, inequitable, to refuse to issue the writ constitutes an abuse of judicial discretion. State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549; State ex rel. Lord v. Washington Co. 2 Pin. 552; State ex rel. Continental Ins. Co. v. Boyle, 40 Wis. 220; Merrill, Mandamus, §§ 62-69. Applying the foregoing to this case, the appellant was elearly entitled to the alternative writ of mandamus, and, in the absence of any issue being taken on the facts alleged-in the petition, a peremptory writ should have been framed and issued to protect his interests in respect to the assessment of the lots upon which he held tax-sale certificates. By the Gourt.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.