170 Wis. 205 | Wis. | 1919
The following opinion was filed December 2, 1919:
The defendant objects to this court taking jurisdiction of this action, for the reason that the questions involved are purely local and that the remedy in the lower courts is adequate. In the Income Tax Cases, 148 Wis. 456, 134 N. W. 673, 135 N. W. 164, the court carefully reviews the provisions of the constitution, the statutory law, and the decisions of this court relating to the exercise
There is much said in the brief of counsel for defendant in regard to the jurisdiction of the town clerk, as if the town clerk were a judicial officer and required at his peril to determine the regularity of all prior proceedings in tax matters and to act thereon upon his judgment. In the preparation of the tax roll the town clerk acts purely as a ministerial officer. When the assessor has completed the assessment roll and it has been passed upon by the board of review, it is the duty of the assessor to deliver it to the town clerk on or before the first Monday of August. Sec. 1064, Stats. The clerk upon receiving the roll shall examine it and make certain specified corrections as they appear necessary. Sec. 1065. The particulars in which the roll may be corrected by the town clerk do not refer to any of the matters set out in the return in this case. When the corrections have been made the clerk prepares the tax roll, which shall contain a complete list of all the taxable real property, arranged as stated (sec. 1078), and upon the receipt of the certificate of apportionment from the county clerk the town clerk is re
“It would be an intolerable evil if ministerial officers could sit judicially on valid process in their hands for execution, and assume authority to correct mistakes which they assume to discover in them. The good order of society requires that they should have no discretion or responsibility, but should obey their process with absolute submission, secure in doing so. And whenever they substitute judicial discretion' for ministerial obedience, they mistake their authqrity and forego their protection.” The town treasurer “had no duty or discretion outside of his process. And this is a lesson which ministerial officers cannot learn too often or too well.”
It appears from the return that the defendant has attempted to pass not only upon the face of the reassessment rolls submitted to him, but has gone back of the roll to the proceedings relating to reassessment, to determine whether or not the persons charged by law with the duty of making the reassessments have properly performed their duties, whether the notices posted were in legal form, whether or not they were posted in what he conceived to be public places, and generally to determine the regularity and validity of the proceedings which resulted in the making of the reassessment rolls. The affidavits attached to the reassessment rolls, copies of which are attached to the supplemental return, appear to be substantially in accord with the statutory requirements. Certainly any defects appearing therein constitute no excuse or justification for the repeated refusals of the town clerk to comply with the plain provisions of the law. When the reassessment rolls for the several years were filed in the office of the town clerk such reassess
It is urged by the defendant that inasmuch as the reassessment rolls were not used in the levy and apportionment of taxation in the tax roll next following the completion of the reassessment, they have no longer any force or validity. We think the statutory direction to the town clerk to include corrections made on the basis of the reassessment in the levy and apportionment of the tax roll next following the completion of the reassessment is a continuing mandate to that officer, and imposes upon him the duty of including such corrections as are necessary to give effect to the reassessment until it has been actually carried out in the manner provided by law.
It is urged that the tax roll of 1919 should not include corrections to be made on the basis of the reassessment rolls, particularly for the year 1916, for the reason that certain adjustments have been made and that certain inequalities will result therefrom. These are matters which relate to private rights, and we shall not attempt in this proceeding ■ to determine such questions. If private rights are involved, questions relating thereto will arise when the owners of property are called upon to pay their taxes. It is ñot the duty of the clerk to anticipate them and attempt to adjust them. It is his duty to levy the tax as the law requires. If difficulties are presented in complying with the mandate in this case, they arise almost wholly by reason of the wilful refusal of the clerk of the town of Oaidand to comply with the plain provisions of the statutes. It is the duty of the town clerk to carry out the mandate of the statute, and it will remain his duty to do so until that mandate shall have been performed and the reassessments given full legal effect.
The facts set up in the return constitute no legál excuse for the' refusal of the defendant to perform his duty, and the prayer of the petition must be granted. A-decent regard for the public interests involved requires that the defendant proceed promptly as a public servant to perform his duty as a public official.
By the Court. — The demurrer to the return is sustained. A peremptory writ of mandamus is ordered to issue as prayed. No costs are to be taxed, except that defendant shall pay the costs in this court.