37 Wis. 75 | Wis. | 1875
. This is an appeal from an order denying á motion to dissolve a temporary injunction restraining the county treas
A question of practice was discussed upon the argument, which we were invited to decide, whether the course adopted in the court below was regular and authorized by the statute, sec. 9, eh. 129, R. S. This section provides, that where the application to dissolve the injunction is made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted. Both the complaint and answer were verified; and it is claimed on the part of the plaintiffs, that an application to dissolve, based upon a verified answer, is within the intent of the provision, and that the plaintiff may introduce new affidavits in opposition.
This question of practice will not now be decided, for the reason that it sufficiently appears from the allegations of the complaint and the admissions in the answer, that the assessment of the real estate was made upon an illegal and inequitable basis, and that, therefore, the injunction was properly continued.
The complaint alleges, that certain rules were adopted by the assessors in 1872, for the assessment of real estate in Barron county, and that the same rules were followed by the assessor and board of review in making the assessment for the year 1878, upon which the tax in question was levied. These rules are as follows : First. Pine on first class driving streams assessed at $2 per M. within the limits of two miles hauling. Second. Pine on such streams of more than two miles hauling, at $1.50 per M. Third. Pine on second class driving streams, as Moose Ear and other streams mentioned, at $1.50 per M. within two miles, and $1.00 per M. beyond. Fourth.
It is alleged, that these rules were framed and adopted by the taxing officers with the intent and for the purpose of favoring the firm of Knapp, Stout & Co., owners of large quantities of pine lands in Barron county, and that they operated-oppressively upon the rights of the plaintiff.
The defendants deny that the rules of assessment adopted in the year 1873 were proposed for the purpose of favoring the firm of Knapp, Stout & Co., or were intended to benefit in any manner that firm ; and they aver in the answer, “ that the said rules were proposed and adopted for the government of the said assessment of 1873, for the reason, that under them it was practicable, and practicable only under them, to secure an assessment fair and equitable, based upon the actual value of the taxable property; and that the said rules were so proposed and adopted in the year 1873 to the end that a fair and just assessment might be had in said town, and for no other or different reason or purpose.,f
It sufficiently appears from this averment, as well as from other admissions in the answer, that these rules were made the basis of the assessment for the year 1873 ; and assuming, as we may well do, that they were adopted with no fraudulent intent, and with no purpose of favoring any owner of real estate, the question then arises, Was the assessment valid which was made in conformity to them ? It appears to us that it was not.
The statute directs the manner in which real estate shall be listed or valued for taxation. “ Real property shall be valued by the assessor from actual view, at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desires to sell, would accept in full payment. In determining the value, the assessors
But it is said by the counsel for the defendants, that even if the rules above quoted were absolutely followed and strictly pursued by the assessor in making the valuation, yet, if they were honestly adopted as expressive of the judgment of the assessor, there being no question of fraudulent intent, a court of equity would not say the assessment was void. But how can a court of equity pronounce an assessment valid which is in plain violation of law ? Real estate must be valued in the manner and upon the principles prescribed by the statute. The assessor may make a mistake in the valuation while honestly attempting to execute the law. Errors of judgment, inequalities in valuation, will intervene in all proceedings of this character. It might not be practicable for the assessor to go over every foot of ground and thus, from “ actual view ” of every part of a tract, determine its true market value, at the time of the assessment. But there should be an attempt to substantially comply with the law. Here we feel warranted in assuming, upon the admissions in the answer, that the law was disregarded, the assessor adopting for the guidance of his judgment rules which not only departed from the statutory requirements, but which could not fail in their operation to defeat a fair and just valuation. That such must have been the necessary effect of the rules upon the valuation, seems to us perfect-
That the assessment made tinder the rules, and • the taxes levied upon the lands of the plaintiffs, were void, and that a court of equity will interfere to restrain the sale, follows from the decisions in Hamilton v. The City of Fond du Lac, 25 Wis., 490, and The Milwaukee Iron Co. v. The Town of Hubbard, 29 id., 51. Those cases seem to be directly in point upon that position.
By the Court. — The order of the circuit court is affirmed.