State ex rel. Hessey v. Daniels

BabNes, J. Sec. 9 of art. XIII of our state constitution •provides that “All city, town and village officers whose election or appointment is not provided for by this constitution .shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that pur■pose.” Acting under the provisions of ch. 259, Laws of 1905, the substance of which will be found in the foregoing statement ■ of facts, the state tax commissioners found that the assessment ■ of the town of Iron Biver for the year 1909 was not made in .substantial compliance with the law, and appointed certain .nonresidents of the town to make a new assessment of the property therein, and appointed certain other nonresidents to . act as a board of equalization to review such assessment. The office of town assessor being one which existed at the time the constitution was adopted, it is urged that the law in.question violates the provision of the constitution above [653] quoted, in that it deprives the electors of the town of the right, to choose their assessor and board of review and to have them perform their legitimate functions, and this is the sole question raised in this court. It is elementary law that an act of the legislature will not be declared unconstitutional unless its repugnance to the con-, stitution is clear and beyond reasonable doubt. There is a. line of cases so holding, running from Norton v. Rooker, 1 Pin. 195, to McGillivray v. Joint School Dist. 112 Wis. 354, 359, 88 N. W. 310, and no doubt beyond; and this general doctrine has never been qualified in words. Equally well settled and as oft reiterated is the other rule that “the legislature has plenary power over the whole subject of taxation within constitutional limitations.” State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797. It is conceded that the law we are considering neither deprives nor purports to deprive local communities of the right, to elect their assessors and the other officers who constitute the boards of review. It is likewise conceded that the persons-appointed by the tax commissioners to make the assessment provided for, as well as persons selected to review it, are not; officers. Hall v. State, 39 Wis. 79; Weise v. Milwaukee Co. 51 Wis. 564, 8 N. W. 295; State ex rel. Brown Co. v. Myers, 52 Wis. 628, 632, 9 N. W. 777; In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670. The appointees are selected merely to perform a specific act, and when it is performed their powers and functions cease. So the real question is, Does the act unlawfully deprive the local officers of the right to exercise their functions and the electors of the-municipality of the right to choose their agents to do the particular work ? It must be remembered that, so long as the local officer» obey the laws of the state, they are not meddled with and their-functions are in no way curtailed, and it is only when they violate the law which they are bound to obey that the state: [654] undertakes to interfere. It should also be remembered that assessors in making an assessment, and boards of review in reviewing it, and local treasurers in collecting the taxes levied, perform governmental as well as municipal functions. Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101; Crandon v. Forest Co. 91 Wis. 239, 64 N. W. 847; Hollman v. Platteville, 101 Wis. 94, 76 N. W. 1119. Eurthermore, the state has a vital interest in insisting that its laws pertaining to taxation be honestly and fairly administered, to the end that the burden of taxation may be equitably distributed. Taxes are of three general kinds: state, county, and local. While the state and the county may fix a valuation of the taxable property in the smaller political units within their boundaries, different from that found by the local authorities, still, in practice, the local assessment may be a strong determining factor in fixing such a valuation. The matter of discovering personal property, and more particularly that of an intangible nature, must devolve very largely upon the work of the local assessor and board of review. In order to make an equal distribution of county and state taxes it is essential that all taxable property that can be discovered be placed upon the tax rolls and that a uniform basis for valuation be adopted and adhered to. So long as the practice prevails of assessing property in different localities at figures varying from twenty-five to one hundred per cent, or more of its true value, and of doing the same thing locally for that matter, so long are we liable to have gross inequalities in the distribution of the tax burden. So the state in endeavoring to enforce the requirements of the law in regard to the assessment and equalization of property is not acting as a mere interloper, exercising a paternalistic function for the purpose of exploiting its right so to dó, but is attempting in good faith to perform a duty in which its citizens generally have something more than a passing interest. All the state has undertaken to do is to review the work done by local officers when its proper agencies are satisfied [655] that tbe law has been violated. In. such a contingency the law in substance and effect provides for a reassessment of the property of the local municipality. ■We fail to see where there is any difference in principle between the law in question and sec. 1077g& of our statutes, which was in force for many years. That statute provided that a reapportiomnent of the valuation of the taxable property of the several towns, cities, and villages of any county, as fixed by the county board, might be reviewed by nonresident commissioners appointed by a circuit judge, and a readjustment made in accordance with the facts found. The validity ■of that law was attached in this court on three separate occasions and its constitutionality was sustained each time. The first assault was made on the ground that the law violated the provision of the constitution whiqh it is here claimed has been overridden. The cases are State ex rel. Brown Co. v. Myers, 52 Wis. 628, 9 N. W. 777; State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797; and Foster v. Rowe, 128 Wis. 326, 107 N. W. 635. While we do not wish to be presently understood as giving express sanction to all the reasons .•stated by the court in support of these decisions, we entertain mo doubt that in principle the cases are correctly decided, and we have no hesitancy in holding that, whenever local assess•ors and boards of review act in disregard of the statutory •duties enjoined upon them, the state has the power to provide •for the appointment of outside agencies to execute the law •which is being ignorantly or wantonly violated, or wilfully set at defiance, as the case may be. It is true that sec. 1077a required the commissioners appointed under it to so adjust the valuations made by them that the.ir aggregate should total the aggregate valuation of the entire property of the county as 'fixed by the county board, but this provision could have no hearing on the constitutionality of the law. It would be just as valid without it as with it. There is no substantial difference in principle between [656] ch. 259, Laws of 1905, and sec. 1, ch. 175, Laws of 1850,. which has been on onr statute books ever since its enactment and now appears ás sec. 1152, Stats. (1898). The earlier statute provides that, whenever the electors of a town shall fail to elect taxing officers, the county board may appoint those of an adjoining town to exercise their respective functions in the delinquent town. The constitutionality of this law was sustained in Strange v. Oconto L. Co. 136 Wis. 516, 117 N. W. 1023. By ch. 259, Laws of 1905, the legislature has enacted that, when the officers elected fail to perform their functions and duties in accordance with positive law, nonresidents of the town may be appointed to assess and equalize-property in a legal manner. One statute provides for a contingency where the electors fail to perform their functions,, and the other supplements it by providing for a contingency arising where officers are elected but fail to perform their duties in a lawful way. It is quite apparent that the law-under consideration may be well calculated to check grave-abuses, and we conclude that it does not trench upon any right guaranteed by the constitution. This conclusion renders it unnecessary to consider other interesting and important questions that' were ably presented in the written, briefs and in the oral arguments at the bar. By the Court. — Order affirmed.