State ex rel. Kappa Sigma Building Ass'n v. Bareis

Wickhem, J. The 1935 assessment of the land owned by the Kappa Sigma Building Association was $26,200, and that of the building was $33,800. The assessment in 1936 was the same. The taxpayer having indicated a desire to be heard before the board, of review upon his contention that the assessment was excessive was notified by telephone that the board of review, which was then in session, would consider the matter on October 2, 1936. On that occasion the taxpayer offered the evidence of Paul Stark and A. J. Bieber-stein, the latter merely detailing the rental 'income. Mr. Stark’s testimony was to the effect that the fair market value of the property in question was $46,000 rather than $60,000, as fixed by the assessor. On this occasion no other evidence was offered, and the record shows that at that time both the taxpayer and the city stated that they had no further evidence to offer, and the reporter’s minutes conclude with the comment, "Hearing closed.” Later, on November 9 and 10, 1936, without notice to the taxpayer and without his presence, the board of review heard further evidence with reference to the value of taxpayer’s property by C. W. Oakey and by John Stock, city assessor. This evidence need not be — 231 — detailed, it being sufficient to state that its effect was to support the assessment. Thereafter, the board of review having sustained the assessment, the taxpayer sued out a writ of certiorari in the circuit court for Dane county to review this action. The return'of the clerk included both the record of October 2, 1936, and that of November 9 and 10, 1936. The relator moved to exclude the record of November 9 and 10, 1936, which motion the circuit court sustained. Upon the basis of the record of October 2, 1936, the trial court was of the view that, the evidence showing the assessment to be excessive being wholly unimpeached, “it was the plain duty of the board to correct the assessed valuation of his property accordingly.” State ex rel. Heller v. Lawler, 103 Wis. 460, 465, 79 N. W. 777; State ex rel. Kimberly-Clark Co. v. Williams, 160 Wis. 648, 152 N. W. 450. Judgment was entered reversing the action of the board of review and directing the city clerk to enter the assessment at $46,000, in accordance with the testimony of Mr. Stark. It is manifest that, if the testimony presented before the board on November 9 and 10, 1936, is entitled to be considered, the evidence of Mr. Stark is put in issue, and the board had before it a conflict of evidence which would warrant sustaining the assessment. We proceed, therefore, to consider the validity of the taxpayer’s contention and the trial court’s conclusion that a proper hearing was not accorded the taxpayer because of failure of the board to notify taxpayer and give it an opportunity to be present at the time of taking the evidence of November 9 and 10, 1936. Sec. 70.47 (1), Stats., reads as follows: “The assessors shall lay before the board of review their assessment roll of the real property and all the sworn statements made by others and valuations made by them of personal property. The board shall, under their official oaths, carefully review and examine said roll and statement and all valuations of real and personal property, and shall correct — 232 — any errors in description of property or otherwise; and for that purpose they are hereby required to hear and examine any person or persons upon oath, who shall appear before them in relation to the assessment of any property upon said roll or in relation to any property omitted therein; and if it appear that any property has been valued by the assessor too high or too low, they shall increase or lessen the same to the true valuation according to the rules for valuing property prescribed in this chapter.” The contention of the taxpayer and the view of the trial court as disclosed in its memorandum is, (1) that this court in Milwaukee County v. Dorsen, 208 Wis. 637, 641, 242 N. W. 515, 517, at least intimated that it is necessary that any taxing system should at some point during the process of assessment accord the taxpayer an opportunity to' be heard with reference to the valuation or taxability of his property; (2) that “hearing” means an opportunity to know the evidence proposed against the one entitled to'the hearing and to respond to it by cross-examination of the witnesses and by production of evidence to rebut it. We are of the opinion that this view is foreclosed by the case of State ex rel. Vilas v. Wharton, 117 Wis. 558, 94 N. W. 359. In that case the city of Ashland had assessed to Knight and Vilas some nine million feet of lumber in the sum of $112,200. An agent of Mr. Vilas appeared before the board of review and made an unsworn statement to the effect that all of the lumber of the firm had been sold prior to the first of May by certain written contracts which he offered for inspection. At a later date he again appeared and made the same statements under oath. A few days later, without notice of their intent to do so, and in the absence of Mr. Vilas or any representative of his, the board took the sworn testimony of two- or three witnesses tending to support the assessment. Writs of certiorari having issued from the circuit court and return having been made, the action of the board of review was affirmed, and relator appealed. The — 233 — court deals with the contention that the sworn testimony taken by the board in the absence of and without notice to the relator should be disregarded. The court said as to this contention (p. 562) : “. . .A novel question is raised by appellant, who contends that the board cannot so receive evidence without at least giving an objector notice and opportunity to be present. The statute places no such restriction on the board expressly, and the implication thereof must be at least clear and necessary to warrant the court in importing it into the statute. These boards, while they act judicially, are not courts, but are part of the machinery of taxation, wholly within the power of the legislature to create and regulate. State ex rel. Ellis v. Thorne, 112 Wis. 81, 87 N. W. 797. The fact that the time of sitting of such board is fixed by law is a sufficient notice to all persons to constitute due process of law for tax proceedings. The statute (sec. 1061, Stats. 1898) requires the board to hear and examine under oath any person who shall appear before them in relation to any assessment, and to increase or lessen the same to the true valuation. In all this there is no suggestion that, before hearing such testimony, they must give notice to any person likely to be affected thereby. That the omission to so provide was not due to oversight of legislators is made obvious by the further requirement that they shall not finally raise any assessment without giving notice of such intention. Since that intention cannot well be formed until the evidence has been heard, there would seem to be here a pretty clear implication that evidence might be taken before the giving of the notice. The decisions of the courts that boards of review cannot change assessments except upon sworn evidence, nor raise them without notice, are not based on any general rules of, public policy or justice, but upon express provisions of the statute. They are entirely consistent with the view that the board might dp either' but for legislative restriction. McIntyre v. White Creek, 43 Wis. 620. Many considerations might well be suggested why the legislature should forbear tO' burden the voluminous and hasty business of these boards with such a restriction as now contended for, but it must suffice as a reason for the courts that it has — 234 — forborne. We cannot find, by implication or otherwise, that the board of review was forbidden to receive or consider the evidence of witnesses without notice to relator. The only previous intimations in former cases are in harmony with that view. Thus, both in Shove v. Manitowoc, 57 Wis. 5, 14 N. W. 829, and Brown v. Oneida County, 103 Wis. 149, 79 N. W. 216, it is said that the board may proceed summarily in taking the evidence.” The foregoing squarely meets and rejects the taxpayer’s contention. This court is faced with a choice of adhering to the construction given this statute in the Vilas Case or qf deliberately departing from it. It is our conclusion that the rule in tlie Vilas Case should be adhered to. The legislature has had many opportunities since this case was decided to modify the statute and to nullify this construction, and it has not done so. That it has not done so is doubtless because of the impracticability and unwisdom of burdening the “voluminous and hasty business” of the board charged with administration of the statutory scheme of taxation by requirements peculiarly appropriate to the trials of causes in courts. While the following quotation from the Dorsen Case, supra (p. 644), is not strictly in point, it accurately describes the viewpoint that the legislature may well have had in enacting sec. 70.47 (1), Stats., and in leaving its content undisturbed after the decision in the Vilas Case: “When we consider that the proper discharge of governmental functions depends upon the regular collection of taxes, and the machinery of administration. by which taxes are collected is often in the hands of those untutored in the law, courts should not inject into the plan set up by the legislature technicalities which may result in depriving the government of the funds necessary for the discharge of its functions.” This disposes of the question so far as it involves a construction of sec. 70.47 (1). The statute so construed does not offend against the “due process” requirements of the — 235 — constitution. In Borgnis v. Falk Co. 147 Wis. 327, 363, 133 N. W. 209, it was said: “Objection is made to those clauses of sec. 2394 — 16 which provide for the giving of notice of claim by mail, and allow testimony to be taken without notice to either party, and the claim is, made that this is not- ‘due process of law.’ Were the commission a court these objections would probably deserve serious consideration, especially the latter one. But, as we have seen, the commission is an administrative board merely. It is common knowledge that such boards are frequently given power to investigate and determine facts without notice to the parties of each successive step in the proceedings. The proceedings before such boards are not expected to be as formal and cumbrous as the proceedings of courts; indeed, the greater flexibility which such bodies must possess if they are to discharge their duties seems to demand greater freedom of action. If notice, either actual or constructive, of the commencement of the proceedings before such a body be required to be given to the parties interested and they be given full and free opportunity to be heard and present evidence, it is generally held sufficient, even though notice of intermediate steps in the proceeding be not required or given.” In Milwaukee County v. Dorsen, supra, it was said (p. 642): “That much less formality, as to notice and opportunity to be heard, will suffice to satisfy the requirements of due process of law in taxation proceedings than before judicial tribunals.” The foregoing conclusions compel a reversal of the judgment. By the Court. Judgment reversed, and cause remanded with directions to quash the writ.