48 Wis. 558 | Wis. | 1880
The following opinion was filed February 3, 1880.
It is claimed that the tax deed is void upon its face because it does not show the year in which the taxes were assessed, for the nonpayment of which the lot in controversy was sold and conveyed. It is a complete answer to that objection, to state that the deed is in the form then and now prescribed by statute. Tay. Stats., 437, § 166; R. S., 377, sec. 1178.
The tax deed, being regular on its face, and having been duly witnessed and acknowledged, is presumptive evidence of the regularity of all prior proceedings in respect to the taxation and sale of the lot. R. S., 377, sec. 1176. Its production, therefore, was prima facie proof of title in the grantee therein named; and the mesne conveyances from such grantee'showed such title in the defendants Benson and Smith.
Had no attempt been made to impeach the tax deed, undoubtedly the findings of the court and the judgment would be correct. It is to be determined, whether the tax deed is successfully impeached. It must be presumed, we think, that
1. The alleged defects in the affidavit annexed to the assessment roll of 1873 are, that it was signed by but three assessors, and sworn to hy but one of them. It is understood that assessments in the city of Eond du Lac are made by a board consisting of one assessor from each of the five wards of the city. The rulé of the statute is, that “all words purporting to give a joint authority to three or more public officers, or other persons, shall be construed as giving such authority to a majority of such officers or other persons, unless it shall otherwise be expressly declared in the law giving the authority.” E. S. 1858, ch. 5, sec. 1; E. S., 1145, sec. 4971. Our attention has not been called to any express provision in the charter of Eond-du Lac which takes this case out of the general rule.
2. Conceding (but hot holding) that but one assessor made an affidavit, this does not invalidate the tax deed. It is provided in section 2, eh. 334, Laws of 1878, that “no omission by any assessor to take or subscribe the oath required by law by him to be annexed to the assessment roll . . . shall invalidate or in anywise affect the validity of the assessment or tax.” The effect of this provision is to render the signing and making of the affidavit by the assessor, which before was mandatory, merely directory. The power of the legislature to make the change was asserted in Plumer v. The Supervisors, 46 Wis., 163.
3. The rulings of the court, rejecting evidence of the rule of assessment in certain years other than 1873, and of the common report as to the rule acted upon by the assessors in 1873, were clearly correct. The question in issue related to the
We think, also, that the learned judge of the circuit court ruled correctly in rejecting evidence of the statements and admissions of the assessors in respect to the basis upon which they made the assessment in 1873. The act of 1878, chapter 334, sec. 12, provides that “ no assessor shall be allowed in any court or place, by his oath or testimony, to contradict or impeach any affidavit or certificate made or signed by him as such assessor.” In the opinion by the chief justice in Plumer v. The Supervisors, supra, we find this language concerning the section just quoted: “Section 12, in effect, disqualifies assessors as witnesses to impeach their own assessments. It was suggested that this was an unwise and oppressive provision. -It is not for the court to determine that. It was clearly within legislative power, whether the discretion was wisely used or not. It puts an assessor in precisely the attitude in which the common law puts a juror. Birchard v. Booth, 4 Wis., 67. And this the legislature could surely do.”
The learned counsel for the plaintiff claim that the language last above quoted is obiter in that case, and therefore not binding in this case, in which the question of the validity of the statute is directly involved; and they argue with great ingenuity that it was not competent for the legislature to impose such a disability upon assessors.
It is quite true that the validity of section 12 was not directly involved in that case; but other provisions of the same chapter, enacted in the same view — that is, to secure the collection of the public revenue, — were thus involved. We were compelled to hold certain of those provisions invalid. We were conscious that our judgment would seriously embarrass the state and its municipalities in collecting taxes already levied, and that remedial legislation on the subject would be absolutely necessary. We deemed it our duty, therefore, to consider and
We conclude that the provisions of sections 2 and 12 of the act of 1878, above quoted, are valid laws.
4. If the assessor may not by his oath or testimony impeach his affidavit or certificate as such assessor, it seems clear that the same cannot be impeached by showing the unsworn statement of the assessor that his affidavit or certificate is false. To allow this would be to allow a thing-to be done indirectly which cannot lawfully be done directly. "We cannot think the legislature intended any such result when it enacted section 12.
Another objection to the rejected testimony may be plausibly urged, independently of the act of 1878. The fact sought to be proved was, that the valuation of property for taxation in 1873 was made upon an unauthorized basis or rule. It is very questionable whether proof of the unsworn statement of an assessor can, under the general rule of evidence which excludes hearsay testimony, be received to establish that fact.
5. Applying the principles above stated, the only testimony remaining in the case tending to show that the assessment of 1873 was made upon an illegal basis, is the testimony that in a very few cases the assessors undervalued property. There is no legal and competent proof that such undervaluation was intentionally made, pursuant to a vicious rule of valuation adopted and acted upon by the assessors. It may have been the result of a mere error of judgment, and if so it does not invalidate the assessment. We think the testimony entirely insufficient to establish the proposition that the assessment was illegal.
6. In making proof of his title, the plaintiff showed a chain of conveyances of lands which include the lots in controversy, from the United States to James Duane Doty. The convey-anees are not inserted in or annexed to the bill of exceptions, but it appears that in the conveyance to Governor Doty he is described as president and trustee of the Fond du Lac Company. The plaintiff also read in evidence the record of a declaration of trust in respect to lands including this lot, executed by Doty to the stockholders of that company, which bears even date with the conveyance to Doty, January 19, 1836. The next instrument offered was the record of a conveyance of the same land by Samuel Ryan, president of the Fond du Lac Company, to the grantor of the plaintiff. No conveyance by Doty was proved, and there was no evidence that Ryan was the president of the company when he executed the conveyance above mentioned.
Although we have not the above instruments before us, we assume that Doty took his conveyance in trust for the company. The Fond du Lac Company was duly incorporated by an act of the territorial legislature, approved February 9,1842. Laws of 1842, p. 12. The effect of certain provisions in that act seems to be to vest in the company the legal title to the
It is unnecessary in the present position of the case to pass definitely upon the plaintiff’s title as it stood before the exe-' cution of the tax deed, and wre shall not do so. But should the plaintiff elect to take a new trial under the statute (E. S., sec. 3092), we suggest to his counsel that it will be the safer course to show that Eyan had proper authority to execute the conveyance.
By the Court. — The judgment of the circuit court is affirmed.
The following additional opinion was filed March 9, 1880:
In the opinion prepared by me and recently filed in this cause, the question whether more than one assessor verified the assessment roll was not passed upon, but the roll was held valid even though verified by but one assessor. It was so held because of section 2, ch. 334, Laws of 1878, andan affirmation in ,Plum&r v. The Supervisors, of the right of the legislature to make the requirement for an affidavit to the
Section 2 passed into the Revised Statutes as section 1164 b, and by that designation was repealed by section 4. ch. 255 of 1879. The blunder in the opinion (for which the writer alone is responsible), in regarding the requirement that the assessors shall verify the assessment roll in the manner prescribed by statute as directory merely, renders it necessary to determine whether the roll in the present case was properly verified. If it was, the result is the same, and the judgment first announced must stand. "We are all of the opinion that the roll was properly verified, and were of that opinion when the cause was decided.
The commencement of the affidavit, “ I, Harvey Durand, Assessor of the First Ward,” etc., is not very significant. It is matter of form, and its insertion in the affidavit may readily be accounted for in view of the facts that the form of assessment blanks is prescribed, and the blanks are furnished, by the secretary of state, and the form here used is the one adapted to each town or municipality having but one assessor, and was undoubtedly furnished by the secretary. The material fact is, that a majority of the board of assessors signed the affidavit, and the jurat, although in the singular- — -“read to the affiant,” etc. ■ — -is applicable to each of the signers. -Besides, we must presume (nothing insuperable appearing to the contrary) that the assessors signing the affidavit complied with the law by swearing to it— there being a jurat, which makes the presumption admissible.
For these reasons, notwithstanding the error in the former opinion, we think the cause was correctly decided.