In November of the year 1908 the treasurer of Winneshiek County made an assessment and_ listed certain moneys and credits belonging to plaintiff, Finn, for the years 1904, 1905, 1906 and 1907. These assessments were upon moneys, bonds, stocks, loans, and credits alleged to have been omitted from ássessment for the years stated, the total amount of taxes assessed being $1,978.82. Plaintiff, Finn, filed with the 'county treasurer his objections to these assessments, claiming among other things, that the property was not liable to assessment by the county treasurer for various reasons, among others being, first, that the property was not omitted from taxation; and, second, that the money and property were not taxable in this state, for the reason that he was a nonresident of this state, and during all the time in question was a resident of the state of Wisconsin. The treasurer overruled these objections, and made the assessments hitherto stated, and plaintiff F^iffn -duly appealed to the district court. When the case reached that court, Finn1'filed-what he called his appeal and cause of action, consisting of forty-five different paragraphs, in which he asked that the assessment
The county was represented by counsel at the taking of the deposition, and upon cross-examination many and diverse interrogatories were propounded to the witness relating to the amount of his moneys and credits, the record, if any, kept by him thereof, and where- the securities were kept. Witness was also asked to produce his bank book, his private books of account, whether or not he kept an account, with a bank in Decorah, and, if so, to produce his account with that bank. He was also asked as to whether or not he had a safety deposit box in a bank at Decorah, and also as to the amount of his deposits in various banks during the time in question.' Further he was asked as to where his securities were kept, and as to whether or not he was assessed in AATseonsin upon his moneys and credits-, and as to whether he -paid any taxes in that state. He was also asked to furnish a list of liis moneys and credits during each of the years in question. lie was further asked as to various loans and trades made by him; as to the returns made by. him to the assessor for the years 1904 and 1905, and as to whether or not he had ever sworn to any of the returns made by him to the assessor. Questions were also asked
The deposition was taken before a commissioner at Deeorah, Iowa, pursuant to an order of court that the case be tried as in equity upon depositions, documentary and other written testimony. The deposition was returned.to the district court by the commissioner, and it showed that plaintiff, as a witness, refused to answer something like three hundred and seven cross-interrogatories propounded to him by counsel representing the county. Upon the filing of the deposition counsel for the county made a motion and application to the district court for an order compelling plaintiff to answer all the questions propounded, to produce his books of account, bank books, list of securities, etc., and that upon his failure to do so he be punished for contempt. Objections to this were filed by plaintiff, and upon hearing the trial court made the following order:
It is therefore ordered that upon notice as required for taking depositions on notice, given by the defendant to plaintiff, or his attorneys, the commissioner before whom the deposition was taken will propound to the plaintiff such questions, which plaintiff refused to answer, as the defendant’s attorney shall request to have propounded, and it is the order that the plaintiff then and there appear and make full and complete answer to all such questions, and furnish a complete itemized list of his moneys and credits, owned by him on the 1st day of January of each of the
The application made by counsel for the county was held sufficient, in form and in substance, as a petition for the production of books and papers under section 4655 of the Code; but, as will be noticed the trial court did not then grant this petition. Instead of complying with this order, plaintiff sued out a writ of certiorari from this
We are, therefore, only to inquire, when is a tribunal ‘acting illegally’ in the contemplation of the statute ? When the law prescribes proceeding to be had by an officer or tribunal in cases pending before them, the omission of such proceedings is in violation of law, and the court or officer omitting them would therefore act illegally. In a word, if a tribunal, when determining matters before it which are within its jurisdiction, proceeds in a manner contrary to law, it acts illegally. But if a discretion is conferred upon the inferior tribunal, its exercise can not be illegal. If it be clothed with authority to decide upon facts submitted to it, the decision is not illegal, whatever it may be, if the subject-matter and the parties are within its jurisdiction; for the law intrusts the decision to the discretion of the tribunal.
The trial court held the application sufficient as a petition under section 4655 of the Code; but, as it refused to order the production of plaintiff’s books and- papers, plaintiff has no just ground for complaint. We are constrained to agree with the conclusion that the application was sufficient under, the statute, and that, if the order does, in effect, order the production of these books and papers, it was with jurisdiction, and is not illegal. .
II. But it is argued with much confidence that the order should not have been made for the reason that the
The case has not.yet reached the stage where plaintiff may have the case, reviewed because of error made by the trial court. This could be done on appeal, of the error will doubtless be disregarded in the trial of the action; or perhaps plaintiff might refuse to obey, subject himself to a possible proceeding for contempt, and then have the "matter reviewed by habeas corpus proceedings. We are not to be understood as holding that this latter remedy would be available. The proposition is stated for the purpose of showing that so far there has been no illegal action upon the part of the trial court.
Nothing appearing which would justify us in annulling the order made by the tfial court, the writ, heretofore issued must be quashed, and the petition dismissed. The order is affirmed.