Strange v. Oconto Land Co.

Timliw, J. Appellant’s first contention is that the tax deeds described in the complaint “were void because the entire proceeding is based on, and all authority of the tax officers is derived from, the resolution acted upon by the county board on June 14, 1879, which resolution is of no force and invalid, because it did not receive sufficient affirmative votes. The basis of this contention is section 665 of the Wisconsin statutes [E. S. 1878], which requires that all questions shall be determined by a majority of the members present. There were ten members present, and the recorded vote shows five voted ‘aye’ and four voted ‘no.’ On a call of the ayes and noes, therefore, the -resolution was not carried.” What would be the consequence if the resolution did not receive a majority vote, but was declared and assumed to have been adopted, and officers were thereupon appointed who assumed to and did act under such appointment, we need not here determine. See cases hereinafter cited respecting de facto officers. The complaint sets out the minutes of the meeting of the county board on June 12 and -13, 1879, as follows: “Members present — Eoyce chairman, Driscoll, Euelle-, Erley, Doyle, Whitney, Mclver, Ellis, Pahl, and T'ib-bitts. . . .” “June 14, 1879, 9 a. m. Board met pursuant to adjournment Members present’same as- yesterday. . . . The following resolution was offered :• “ ‘Whereas, the people of the territory which has been set off as the town of Darling have neglected to elect the officers required by law to be chosen therein, by reason whereof the — 522 — property of said town, has failed to "be assessed in the manner provided by law, therefore be it resolved that the chairman and clerk of this board are hereby ordered and directed to issue the warrant of this board to the assessor and treasurer of the town of How, requiring them to assess and collect respectively the amount of taxes due from said town of Darling to the state and county, till an election shall be held therein. Dated June 14, 1879.’ “On motion to adjourn till 2 o’clock p. m. the ayes and noes were called and the vote was taken as follows: . . . Motion declared carried. Two o’clock p. m. Board met pursuant to adjournment. Same members present as in forenoon. The ayes and noes were called on the resolution before the board on adjournment in the forenoon, as follows: Aye — Ruelle, Whitney, Ellis, Pahl, Tibbetts — 5. No — Dris-coll, Erley, Doyle, Melver — -4. And the resolution was declared carried. . . . Robeet Ellis, Co. Clerk.” We take this record to, mean that the resolution was declared carried by the officer whose duty it is, under ordinary parliamentary usages and rules, to so declare, namely, the chairman or presiding officer of the meeting. When the ayes and noes were called by him or by the clerk, the name of the chairman, Royce, was not called. Presumably the vote as called and taken was handed up to him and he declared the resolution carried. We think that in so doing he must be held to have assented to the passage of the resolution, which assent is in legal effect voting for its passage. This is a transaction nearly thirty years old, and all presumptions of the regularity of official action favor this view'. We cannot presume that the chairman believed he had no authority to vote on the resolution, nor that he believed five was a majority of ten, nor that he believed that he was not to be counted as making one of the quorum present. We are rather to presume that he knew the law and understood his official duties, and that his action was informal but not illegal. The decided cases bearing on this question favor this view. State v. Armstrong, 54 Minn. 457, 56 N. W. 97; — 523 — Rushville G. Co. v. Rushville, 121 Ind. 206, 23 N. E. 72; Small v. Orne, 79 Me. 78, 8 Atl. 152. We think in the complaint it is shown presumptively that,the resolution in question was carried by a majority of the members present, the chairman voting informally, but nevertheless voting. The appellant, however, contends that sec. 1152, Stats. (1898), is unconstitutional (1) in that it provides for an assessment, collection, and delinquent return of taxes by persons who are not officers of the town in which the land was situated, elected or appointed as required by sec. 9, art. XIII, Const.; (2) that the section in question is invalid in that it provides for the exercise of such official acts by persons not residents of the town in which the property is situated; (3) that it violates sec. 23, art. IV, Const., relating to the uniformity of town and county government; (4) that it is contrary to sec. 1, art. VIII, Const., which provides that “the rule of taxation shall be uniform,” because there is no board for review of an assessment thus made, although all other assessments are subject to revision by a board of review; (5) that it is contrary to see. 1 of the XIVth amendment to the constitution of the United States, because it deprives the owners of property situate in the town therein mentioned of such property without due process of law. Taking up these objections seriatim: (1) Sec. 1152, Stats. (1898), which comes down to us from eh. 175, Laws of 1850, and sec. 64, ch. 18, E. S. 1858, makes temporary provision for an emergency in which there would be, but for this statute, an entire suspension of the functions of a public office, and is therefore valid and constitutional as against this first objection, within the rule of Sprague v. Brown, 40 Wis. 612; Du Page Co. v. Jenks, 65 Ill. 275; 23 Am. & Eng. Ency. of Law (2d ed.) 340, and eases cited. (2) The town which neglects and refuses to elect town officers cannot have town “authorities,” and in such emer — 524 — gency for tbs collection of tbe state and county tax other residents of the county, holding offices in the adjoining town, can lawfully bo authorized to act, even if we assume that town officers must be residents of the town in which they hold the office. This follows from the emergency rule last above referred to-. (3) There is no violation of the uniformity of town government in a statute which provides a uniform rule for all towns in a like condition; that is to say, all towns in which the people shall neglect or refuse to elect the officers required by law to be chosen therein, by reason whereof the property of such town shall fail to be assessed in the manner provided by law. State ex rel. Busacker v. Groth, 132 Wis. 283, 112 N. W. 431, and cases cited in opinion. (4) The statute (sec. 1152) has been on the statute books of this state since 1850, and during the first eighteen years of its existence there was no general statute providing for a board of review. By ch. 130, Laws of 1868, boards of review were established. How ch. 175, Laws of 1850 (sec. 64, ch. 18, R. S. 1858), could have be¿n within the rule of uniformity of taxation and on this ground constitutional at the time of enactment and during the first eighteen years of its existence, and then become unconstitutional by the enactment of a subsequent statute, is difficult to imagine. In such case, and where unconstitutional lack of uniformity would be thus produced, it is usually the later enactment which must fall. The later enactment is the law providing for boards of review, according to appellant’s contention, in all towns, cities, and villages of the state, except towns which have neglected and refused to elect officers. This rule of uniformity permits reasonable classification; but, waiving this consideration, if the consequence of nonuniformity followed the enactment of ch. 130, Laws of 1868, and applied to the last-mentioned law, it would then appear that there was no board of review lawfully provided for in any town, but the appellant’s rights in this case would be in no way affected, — 525 — nor could be be beard to assail as unconstitutional a law wbicb did not affect bim injuriously. Next, tbe law relating to boards of review does not expressly exclude from review before sucb board tbe extraordinary assessment referred to in sec. 1152. On tbe contrary, tbat law contains general provisions requiring tbe assessors to lay before tbe boards of tbeir respective towns tbeir whole assessment, manifestly including tbe extraordinary or emergency assessment made under sec. 1152. See sec. 1061, Stats. (1898). We can find no taint of unconstitutionally upon tbis fourth ground in either the law providing for this emergency assessment or in the law establishing boards of review. (5) We see no valid reason for upholding the claim that art. XIV, Amendm. Const. U. S., is infringed by a state law sucb as we have described above, relating to taxation. Tbe property owner finows tbat be is expected to pay annually a tax on all bis property. Tbe fact of bis ownership and tbe general statutes amply inform bim tbat some tax is due and tbat it becomes due annually. If tbe property goes untaxed for any year, it is an event so extraordinary as to put bim upon inquiry. Tbe town in wbicb tbe property is situate is a matter of public law, and whether or not tbe people of tbat town have neglected or refused to elect officers, tbe provisions for sucb emergency found in sec. 1152, tbe return delinquent to tbe county treasurer, the records and published notices of sale of tbe latter, and tbe record of tbe tax sale are all acts of sucb a public nature as to afford ample opportunity to pay, and ample notice within tbe requirements of tbis XlVth amendment so far as tbe amendment applies to tax matters. Lastly, in any event tbe assessor and treasurer of tbe town of How were officers de facto. There were tbe offices existing by force of law, but vacant by default of tbe electors, and there were persons claiming tbe right under tbe statutes of tbe state to exercise tbe functions of these offices and actually engaged in sucb exercise. Cole v. Black River Falls, 57 — 526 — Wis. 110, 14 N. W. 906; C. & N. W. R. Co. v. Langlade Co. 56 Wis. 614, 14 N. W. 844; In re Burke, 76 Wis. 357, 45 N. W. 24; In re Manning, 76 Wis. 365, 45 N. W. 26; Farrier v. State ex rel. Dugan, 48 N. J. Law, 613, 7 Atl. 881. They were not necessarily town officers de facto of the town of Darling. They were officers de facto in any event for the purpose of exercising the authority conferred by sec. 1152 in the emergency therein provided for, and it is not necessary to the validity of their acts that we be able to classify these special officers as town, county, .or state officers. The complaint alleges that tax deeds were issued and recorded, and in the absence of averment to the contrary we must assume that such tax deeds were in the form required by law, thus entitling them to the presumption in favor of the regularity of all prior proceedings as specified by statute, and to the protection of the statute of limitations when the lands are vacant and unoccupied. The complaint, therefore, shows that the cause of action there attempted to be set forth is barred by the statute of limitations, within the rules announced in Pratt v. Milwaukee, 93 Wis. 658, 68 N. W. 392; Kennan v. Smith, 115 Wis. 463, 91 N. W. 986; Hamar v. Leihy, 124 Wis. 265, 102 N. W. 568; Oconto Co. v. Jerrard, 46 Wis. 317, 50 N. W. 591, and cases cited in those opinions. By the Court. — The order of the circuit court sustaining the demurrer is affirmed.