State ex rel. Blaine v. Erickson

| Wis. | Nov 17, 1919

The following opinion was filed December 2, 1919:

Rosenberry, J.

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" court="Wis." date_filed="1912-03-12" href="https://app.midpage.ai/document/state-ex-rel-bolens-v-frear-8190495?utm_source=webapp" opinion_id="8190495">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 of-its original jurisdiction by this court, and we shall not attempt a restatement of the matters there considered and stated. ' From the facts set out in the petition and in the return it is apparent that a remedy in the lower courts is either entirely lacking or is inadequate and ineffective. For four years the officers of the town of Oakland have succeeded in bringing to naught the efforts of the tax commission to administer and enforce the laws of this state, and it does not appear that they will ever succeed in their efforts if relief be denied here. That the matter is publici juris is apparent. If the taxing power of the state can be set at naught by the continued refusal of a ministerial officer to perform his duty, and no effectual remedy can be invoked, the situation is certainly extremely serious. Therefore we are of the opinion that under the principles laid down in the Income Tax Cases this court should take jurisdiction of this matter.

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 required to calculate the amount required to be raised upon such valuation to realize in his town the whole of the state, county, school, together with such town and other local taxes as are to be levied, uniformly upon all the taxable property in the town. Speaking of the duties of a town treasurer, which are analogous to those of the town clerk, it was said in Stahl v. O’Malley, 39 Wis. 328" court="Wis." date_filed="1876-01-15" href="https://app.midpage.ai/document/stahl-v-omalley-6601978?utm_source=webapp" opinion_id="6601978">39 Wis. 328, that

“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 reassessment rolls by operation of law became the roll upon which the taxes apportioned to the town were to be calculated and carried out. They supplanted the original rolls prepared by the assessor. If filed too late to take the place of the original roll, they were to be taken into account in the making of the next succeeding tax roll. Sec. 1087 — 57, Stats.

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.

We shall not attempt to pass upon the legality of the preliminary steps to these various reassessments. They are not before us in this proceeding. The matter that we are here concerned with is the matter of the duty of the town clerk to prepare the tax roll in the manner prescribed by law. He is in no position to question the regularity or to pass upon the validity of the acts of those whose duty it was to prepare the reassessment rolls. It is his duty to take the reassessments rolls, which are fair upon their face, and from them prepare the tax roll for the year 1919 in the manner plainly pointed out by the statute, making the necessary credits and debits in the tax roll for 1919 to give effect to the various reassessments. Sec. 1087 — 57, Stats.

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.