Phillips v. City of Stevens' Point

25 Wis. 594 | Wis. | 1870

I)ixoN, C. J.

The complaint charges that the board of review, ‘ ‘ arbitrarily, and of their own motion, and Avithout any proof being furnished to said board,” raised tbe aggregate valuation of the personal property of the plaintiff, as the same had. been fixed and determined by the assessor, three thousand five hundred dollars. The complaint also shows that the plaintiff was compelled by distress and sale of property to pay the taxes on the sum thus added to the valuation. The statute prescribing the powers and duties of the board of review is sec. 25, chap. 130, Laws of 1868. It is obvious from an examination of that section, that the board had no authority to do what they are here charged with having done. They are authorized to review and examine all valuations of real or personal property and bank stock, and to correct any errors apparent in the description of property or otherwise, and for that purpose they are “required to hear and examine any person or persons upon oath, who shall appear before them, in .relation to the assessment of any property upon said roll, or in relation to any property omitted therein; and such examination shall be reduced to writing by the clerk, and carefully preserved on file in his office; and if it appear that any property has been valued by the assessor too high or too low, they shall increase or lessen the same to the true valuation, according to the rules for valuing property prescribed by this act.” It appears thus, very plainly, that the board were not to act arbitrarily and without any proof being furnished, but only upon the testimony of persons examined under oath ; and that the act of the board here complained of was unauthorized, and imposed no obligation or duty upon the plaintiff to pay the taxes. It results from this, that the plaintiff has his remedy to recover back the money so illegally collected from him by the seizure and sale of his property, and all of which, he avers, was collected for the use and benefit of the city and paid into its treasury, and appropriated and used by it. And this, we think, must be regarded as the nature of the action here instituted; and, so regarded, the complaint states a good cause of action for the recovery of the whole sum collected, within the principle laid down in Matheson v. Mazomanie, 20 Wis. 191.

It follows, that the order appealed from, overruling the demurrer to the complaint, must be affirmed, and the cause remanded for further proceedings according to law.

By the Qourt. — It is so ordered.