State ex rel. Ilsley v. Leuch

Vinje, J. Assuming that the facts in this case bring the relators within the rule announced in State ex rel. J. S. Stearns L. Co. v. Fisher, 124 Wis. 271, 102 N. W. 566, that the assessment was presumptively correct and could be overturned only by definite and conclusive evidence impeaching it, yet we cannot escape the conclusion that there was no basis in the evidence upon which the assessment could rest: The finding attacked is one that goes to the jurisdiction of the board of review to act at all, not one confessedly made within its jurisdiction. The former finding stands upon a different basis from the latter, as was pointed out in Borgnis v. Falk Co. [634] 147 Wis. 327, 359, 360, 361, 133 N. W. 209. It is not conclusive upon appeal. If it were, such boards could determine their own jurisdiction without the right of review by the courts, no matter how erroneous their action. It is only findings made within their jurisdiction that are conclusive if based upon some evidence, not findings determining jurisdiction. The latter must have a substantial basis in the evidence or they cannot be sustained. In the instant case the trial court was of the opinion that the renting of flats by the deceased in Eebruary, 1912, living-in them till the following June, and returning thereto in December, furnished a sufficient basis for the board’s determination. In this the court erred. The renting of and living in such flats, as stated, in no wise contradicted the undisputed facts that the deceased intended to change his place of residence from the city of Milwaukee to the town of Milwaukee, and that such intention was effectuated by an actual removal of residence to the town in May, 1909, which continued uninterrupted till his death in December, 1912. His name was taken from the tax rolls in the city and placed upon the tax rolls of the town for personal property taxation. He voted in the town and ceased to vote in the city. In fact, he did everything that could, under his mode of life and business necessities, be done to effectuate his intent to change domicile. The fact of a man having a residence in one taxing district and a business office in another is now so common as not to cast any doubt upon the question of residence. The same is almost true of the custom of residents of the country, who have a business office in the city, to. move into the city temporarily for the winter months. Certainly in the case of the deceased, who was about seventy years old, such temporary winter residence in the city should not be held inconsistent with an unmistakable effectuated intent to establish his residence in the town of Milwaukee. The question was suggested by respondent that the deceased should not be aided by the court in escaping just taxation. [635] The court can neither give nor refuse such aid. All it can do is to declare the law upon the facts' presented. It appears in this case, however, that the chairman of the town of Milwaukee was present with his attorney before the board of review of the city and protested against the assessment of the estate in the city, claiming it was taxable in the town of Milwaukee. Thus it becomes a question of which taxing district is entitled to tax the estate, rather than a question of its escaping taxation. The conclusion arrived at on the merits renders it unnecessary to determine the questions raised by the relators as to the constitutionality of the reassessment statute. By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment canceling the assessments.