McIntyre vs. The Town of White Creek and another.

Stale ex rel. v. Supervisors, 34 id., 169; Somers v. Schmidt, 24 id., 417. 5. That, as the complaint alleges that the board's omissions were willful and fraudulent, and the acts omitted were jurisdictional, a further averment that plaintiff's taxes were unjust and inequitable, was needless.

LYON, J. The bill of exceptions is not certified to contain all of the evidence, and no exceptions of any importance to the rulings of the learned circuit judge on the trial are preserved in the record. Neither is it denied that the findings of fact are all within the issues made by the pleadings, nor that the judgment is in strict accordance with the conclusions of law. In such a case, under repeated decisions of this court, the only question to be determined on appeal is, Do the facts found support the conclusions of law?

In this case, the only facts found which it is claimed support the conclusion of law that the increase of valuation by the board of review was illegal and void, are, 1. That the members of such board did not take official oaths as such, in addition to their general oaths of office. 2. That the board of review increased the assessor's valuation without examining witnesses thereto; and 3. That the plaintiff was not personally notified of the intention of the board to increase the valuation of his property.

Unless these facts, or some one of them, render void the action of the board of review, such action is legal and valid, and the levy of taxes on the increased valuation of plaintiff's property should not be disturbed.

1. It is provided in sec. 25, ch. 130, Laws of 1868, that the town board of review shall, under their official oaths, carefully review the assessment roll, etc. This is the statute which it is claimed requires the members of the board to take special official oaths as such. But the statute does not so read, and we think the language employed fails to show that it so intends. Had the legislature intended to require such special

McIntyre vs. The Town of White Creek and another.

oaths, it is fair to presume that a special provision to that effect would have been inserted in the statute. Each member of the town board of review is a town officer (Laws of 1868, ch. 130, sec. 24; Laws of 1873, ch. 152), and is required by law to take and file an official oath (R. S., ch. 15, sec. 45); and his duties as a member of such board pertain to his office -constitute a part of the duties of his office, and are necessarily included in the obligations of his general official oath. We hold, therefore, that the "official oaths" of the statute are the general oaths of office which it must be presumed the members of the board took as town officers, and that the action of the board of review in the present case is not void merely because the members thereof failed to take another official oath.

2. Are the proceedings of the board of review void because no witnesses were examined before it on oath as to the valuation of plaintiff's property? In Phillips v. Stevens Point, 25 Wis., 594, decided during the January term, 1870, it was held that the board of review had no power under the above statute (sec. 25, supra; Tay. Stats., 407, § 54), of its own motion, and without testimony under oath, to increase the assessor's valuation of property listed for taxation. The next legislature which convened after that decision was announced, enacted the following proviso to sec. 25: "Provided, further, that the said board of review shall and may, when they deem the valuation of any property assessed too high or too low on the assessment roll, raise or lower the same, as the case may be, whether the person assessed appear before them or not, and they may also place on the said roll any property that they may know to be left off from said roll by mistake or otherwise, and assess the same to the person to whom of right it should be assessed." Laws of 1871, ch. 166.

In Wilson v. Heller, 32 Wis., 457, it is intimated that the act of 1871 may have so changed the rule as to authorize the board, when they deem the valuation too low, to raise the same

VOL. XLIII-40

McIntyre vs. The Town of White Creek and another.

without any sworn testimony, and even against evidence given before them on the subject.

Under the law of 1868, as interpreted in Phillips v. Stevens Point, the board could not change the assessor's valuation unless the change was supported by testimony; yet the board was powerless to compel the attendance of witnesses before it. Hence, although the board might know that there were gross inequalities in the assessment, such inequalities could not be corrected unless witnesses appeared voluntarily before it and testified thereto. Thus the object of the statute in creating a tribunal of review was very liable to be defeated. It is not difficult to believe that the amendment of 1871 was enacted for the purpose of correcting such imperfections in the law of 1868, to the end that the tribunal should be a "board of review" in fact as well as in name.

After careful consideration of both statutes, and in view of the circumstances under which the amendatory law of 1871 was enacted, we have reached the conclusion that the intimation in Wilson v. Heller, supra, foreshadows the true construction and effect of the latter act, and it should be held that, under the law as it now is, the board of review may, in the exercise of a sound judgment, increase or diminish the assessor's valuation without first hearing the testimony of witnesses in respect thereto.

3. The remaining fact which it is claimed invalidates the proceedings of the board of review, requires but a brief consideration. The law of 1871 contains this further proviso: "and provided further, that in all cases, if said board shall raise the amount of such assessment on any property, the owner thereof, if a resident of such town, shall be duly notified of such intention in time, that such owner may be heard before such board in relation to the value thereof." If the plaintiff was not so notified (and whether he was or not it is unnecessary to determine), the omission was in no correct sense jurisdictional. It did not go to the groundwork of the tax,

Arnold vs. The Supervisors of Juneau County and another.

but was a mere irregularity, unavailable in a court of equity to avoid the tax, unless it worked a substantial injustice to the plaintiff. Marsh v. The Supervisors of Clark Co., 42 Wis., 502. But it resulted in no such injustice, for it is a verity in the case that the valuation of the plaintiff's property fixed by the board was not in excess of its actual value, or of its proportionate value compared with the valuations of the other real estate in the town.

It follows from the foregoing views, that the proceedings of the board of review in raising the valuation of plaintiff's property are valid, and that the circuit court erred in holding the contrary.

By the Court. The judgment is reversed, and the cause remanded with directions to the circuit court to dismiss the complaint.

ARNOLD VS. THE SUPERVISORS OF JUNEAU COUNTY and another.

TAXATION: INJUNCTION. (1) When collector's fees and interest at 12 per cent. payable on valid taxes. (2) School district tax; form of clerk's certificate. (3, 4) Road tax; presumption as to validity.

COSTS: (5) In equity suit.

1. In an action to restrain a sale of land for taxes, brought and determined before the land is inserted in the delinquent list by the county treasurer, the judgment should require, as a condition of relief, payment of the valid part of the taxes, and interest thereon at twelve per cent. from the first day of January preceding the time for making the delinquent list, to the date of such judgment (secs. 110, 111, 113, ch. 18, R. S.), and also the five per cent. thereon as collector's fees, returned with the delinquent taxes (sec. 2, ch. 26 of 1861).

2. A certificate of a school-district tax, signed by the clerk, merely stating that, "at the annual school meeting [specifying the date], voted to raise three hundred dollars for teachers' salaries, in building a wood-shed, and all incidental expenses during the year" - held, not to be a compliance with

Arnold vs. The Supervisors of Juneau County and another.

sec. 1, ch. 81 of 1869, and to confer no authority upon the town clerk to levy the tax.

3. One who alleges defects and irregularities to invalidate a tax, must prove

them.

4. Where the road warrant put in evidence by plaintiff showed a road tax at a certain rate on the total valuation of his property, real and personal, and the tax roll of the same year showed his delinquent road tax on the valuation of his real estate to be a much greater rate, but within the amount of the additional assessment which the statute authorized the overseer of highways to make, upon a certain application, if the first were deemed insufficient (sec. 1, ch. 74 of 1872): Held, that, in the absence of proof to the contrary, it will be presumed that such additional assessment was made.

5. In equity cases, costs are at the discretion of the court; and where a large part of the taxes complained of were invalid, there was no abuse of discretion in requiring the defendant county to pay the costs.

APPEAL from the Circuit Court for Juneau County. Action against the board of supervisors and treasurer of Juneau county to restrain the sale of plaintiff's real property in a certain town of said county, for taxes of the year 1874, and to have such taxes adjudged void. The complaint avers, among other things, that plaintiff's real estate in said town. was assessed in said year at $6,195; that there was charged thereon for state, county, school and town taxes, $111.55, for school-district taxes, $46.67, for road-district taxes, $47.07, and for collector's fees, $10.15; that no highway tax was legally charged on said property for that year, the town supervisors not having assessed any such tax or issued any warrant for its collection, and no sworn return of unpaid highway taxes having been made, but said tax having been charged against the property as delinquent by the town clerk without authority; and that the school-district tax was likewise charged. on the property without authority. There were other allegations, designed to show the invalidity of the whole tax; but these are not important here. On the verified complaint, an injunctional order was granted by a court commissioner on the 21st of April, 1875.