94 Wis. 503 | Wis. | 1896
1. It is provided by sec. 1164, S. & B. Ann. Stats., that “ any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, city or village, may have and maintain an action against such town, city or village for the recovery of all moneys so unlawfully levied and collected of him: . . . provided, however, that no action shall be maintained under the provisions of this section unless it be made to appear to the court that the plaintiff has paid more them his equitable share of such taxes.” The plaintiffs were engaged in logging and lumbering at Rhinelander, in the town of Pelican; and it was their duty under the law to make a fair and truthful return of their personal property liable to taxation in that town, to the assessor. There is no claim that they had any personal property so liable to assessment, except saw logs and lumber manufactured therefrom. They sought to recover that part of the entire tax which was based wholly on the addition to their assessment, without notice, of two items,— one of $2,500, for 1,000,000 of logs “on the Soo railroad;” and $20,000 for timber. The defendant town sought to show that the plaintiffs had logs and lumber subject to assessment and taxation in the defendant town for that year, to an amount and value so that they ought to have paid as large and perhaps a larger tax than they in fact paid. The statute applies the rule in equity in respect to relief on account of illegality in the assessment and collection of taxes, denying all relief unless it is made to appear that the tax proceedings are not only illegal and void, but
2. It is evident that the circuit court held that the 5,000,000 feet of logs, or thereabouts, cut in Forest county and brought by rail to the town of Pelican, and which on May 1, 1892, had not been sawed into lumber, were not liable to assess
In the case of State ex rel. Holt L. Co. v. Bellew, 86 Wis. 189, the question was whether logs that had been cut and banked in the town of Armstrong six months before April 1, and on that date remained in such town, were lawfully, subject to assessment in said town, or whether an assessment thereof in the city of Oconto, where it was intended that they should be manufactured into lumber, could be supported; and it was held in that case that all saw logs cut within six months prior to April 1, under sec. 2, ch. 413,
3. The plaintiffs were not liable, we think, to be assessed in the defendant town for the lumber manufactured out of that portion of the Forest county logs that had been sawed prior to May 1, 1892, and turned over on that day to the Keller Lumber Company and to Palmer, Fuller & Co. Personal property, in general, is required to be assessed as of the 1st day of May in each year. The making of the assessment as of that date involves the question .of ownership, and in many cases of location or situs of property for taxation. It would be unreasonable and unjust to hold, in respect to a sale and transfer of title perfected May 1, that the prop
4. There is no evidence in the case that would seem to justify an assessment against the plaintiffs for 1892 for the 1,000,000 of logs added to their list as being “ on the Soo railroad.” The evidence fails to show whether these logs were ever brought into the town of Pelican, or, indeed, anything satisfactorily about them. The evidence in the case in respect to the quantity, as well as the value, of the logs cut in the town of Pelican, for which the plaintiffs should have been assessed, is quite uncertain and unsatisfactory, .and so, too, as to the quantity of logs brought from Forest -county. As the judgment of the circuit court must be reversed on account of the error in respect to the liability of the plaintiff to be assessed and taxed for the logs brought from Forest county, and which had not been sawed prior to May 1, we will, under the circumstances, reverse the judgment of the circuit court, and direct a new trial of all the issues in the case.
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.