46 Wis. 364 | Wis. | 1879
Lead Opinion
It is insisted, in this case, that the facts stated in the complaint show that the tax upon the personal property was void, because the assessors, disregarding the valuation of such property made by one of the executors, placed a higher value upon it for purposes of taxation. The property consisted almost entirely of “ bonds, mortgages, notes, tax certificates and other evidences of debts secured on real estate.” In the statement furnished by the executor, the aggregate amount of this personal property was placed at $35,000, and the assessors increased it to $60,000. It is claimed that the assessors had no authority in law for thus increasing the aggregate valuation made by the executor, and that the attempt to do so invalidated the tax. We cannot assent to the correctness of this position; By sec. 1, ch. 78, Laws of 1873, the board of assessors is required to place opposite the name of each person liable to assessment on personal property, the aggregate valuation of all personal property owned by such person, or which he has in charge as agent or trustee, and which is liable to taxation; such aggregate valuation to be fixed according to the best judgment and belief of the board. “To determine the amount of personal property, except moneys, notes, bonds, mortgages or other securities, owned by any person liable to taxation, said board of assessors, or any of them, may examine such person under oath as to all items of personal property, as aforesaid, owned or possessed by him or her, and the true value thereof. And should any person refuse to testify under oath before said board of assessors or any one of them, as to the items of value of his or her property, or should the assessors or any one of them, or the board of review, desire further evidence, they may call upon other persons as witnesses to give evidence under oath as to the items and value of the personal property of such persons. In determining the amount of moneys, notes, bonds, mortgages or other securities owned or held by any person, and the amount of indebtedness which any person may be entitled to deduct from
In this case the statement made by the executor was not sworn to/ it did not, therefore, bind the judgment of the assessors, who were at liberty, in the absence of such sworn statement, to resort to any means of information within their reach to determine the amount of moneys, notes, etc., belonging to the estate, which should be assessed for taxation. Where the statement of the tax-payer is made under oath as to the amount of moneys, notes, etc., and the amount of indebtedness
By the Cowrt.— Order affirmed.
Rehearing
I. In support of the motion for a rehearing, it is said the court failed to notice the argument founded on the allegation that the tax was void for the reason that the assessors intentionlly valued the property in question “ in accordance with a different rule or basis of valuation than that adopted and acted upon by them in their valuations of other property for taxation in said year.” Preceding this allegation in the complaint, certain facts were stated, which the court certainly assumed, as it had the right to assume, were relied on to show wherein the assessors departed from or violated the rule of uniformity. If the pleader did not intend to show by these facts that the rule of valuation as to this property differed from that acted upon in assessing other property, it is difficult to understand why they were set out in the complaint at all. We supposed they were stated to show wherein the proceedings were illegal. We deemed them insufficient to sustain that claim. Eor, to take an analogous case, suppose a party brings an action to set aside a contract on the ground of fraud, setting forth in his complaint certain specific facts to show the fraud, and then, as a conclusion founded on those facts, alleges that the contract is void. Would a court, on demurrer to the complaint, after deciding that the facts did not establish or show fraud, still hold the complaint good on the general allegation that the contract was void? We apprehend not. Now, if the fact that the assessors valued the property higher than the executor did in the statement which he furnished the assessors, was not relied on to show a violation of the rule of uniformity, why was it set forth in the complaint at all? This is really the only fact stated to show that the assessor adopted a different rule of valuation in respect to this property from that acted upon as to other property. And if the learned counsel will refer to his original brief, he will observe that this fact was the only thing there relied on to
II. The second position relied on as showing the tax invalid, it is conceded, was not fully stated in the former brief. It is, that the tax is void for the reason that the assessors did not require the plaintiffs, or one of them, to make a statement as to the value of the property under oath, as the statute directs, but, having accepted the unsworn statement without offering to administer the oath, proceeded to determine its value in another way and by other sources of information. The executors had an undoubted right to conclude the judgment of the assessors as to the value of this class of property, by themselves fixing its value under oath. This was a right which the law gave them. But if they .did not see fit to render a sworn statement as to its value, the assessors had to determine its value in the best way they could. We presume it is not an unfrequent occurrence for tax-payers, from choice, to furnish assessors with unsworn statements of this kind of property, leaving it to the assessor, if dissatisfied with the valuation given, to get at the proper valuation in the best manner possible. But still we do not think that such a mode of assessment renders the tax void. It is the duty of the tax-payer to make oath to his statement, if he wishes it to be conclusive upon the assessors. The motion for a rehearing must be denied.
I was not present when this cause was heard. But I have carefully examined the case, the briefs on the hearing and on the motion for rehearing, and the opinion of the court. And I am compelled to dissent from the overruling of the motion, on two grounds:
And there is reason for the distinction. Eor other taxable personal property is generally, though not always, open to inspection and valuation of the assessors; but money and securities for money are generally not so. Therefore the assessors may, when necessary, appeal to the conscience of the tax-payer in regard to other personal property, but must appeal to it in the first instance in regard to money and securities. That appears to me to be the plain reading of the statute.
In the present case, one of the executors appears to have tendered the oath to the assessors, which it was the duty of the assessors, or one of them, to have taken. If they avoided to take it, by way of excuse for enlarging the amount, they violated the statute, and committed a wrong upon the executors.
In my humble judgment, the cases cited in the opinion of the court support my dissent, and not the opinion.
II. There is an averment in the complaint that the assessors intentionally valued the property by a different rule of valuation than that adopted and acted upon by them in their valuation of other property. It is true that this averment immediately follows one in regard to the disregard of the statement of money and securities rendered by the exec
The averment is certainly very general. But if it be defective in that respect, the remedy against it was by motion to make it more definite and certain, and not by demurrer.
If there were different rules of valuation, one of them at least was not the statutory rule. And all the late cases hold that a difference of rule avoids the whole assessment.
Eor these reasons I think the appeal should be reheard.
By the Court. — Motion for rehearing denied.