107 Wis. 420 | Wis. | 1900
1. The circuit court having expressly declared that it quashed the writ of certiorari “ on the merits,” we, for the purposes of this review, shall consider its action as tantamount to a judgment of affirmance, in the light of State ex rel. Gray v. Common Council of Oconomowoc, 104 Wis. 622, 628, and authorities there cited. Upon such consideration two principal questions arise, and have been debated with much vigor by counsel: first, whether sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, authorizes reassessment upon any omitted personal property which between the time of its omission and the time of reassessment has passed out of existence, out of the ownership of the person assessed, or but of the assessment district; second, whether such act authorizes reassessment of personal property omitted prior to the amendment.
Sec. 1059, with the amendment in brackets, provides: “ Deal [or personal] property omitted from assessment in any of the three next previous years by mistake or inadvertence, unless previously reassessed for the same year or years, shall be entered once additionally for each previous year of such omission, designating each such additional entry as omitted for the year 18— [giving year of omission], and affixing a just valuation to each entry for a former year as the same should then have been assessed according to his best judgment, and taxes shall be apportioned and collected on the tax roll, for such entry.”
This section had for many years served to authorize, and ■with the aid of the general taxing machinery to enable, the assessment and collection of omitted taxes on real estate. The addition of personal property to the subjects affected thereby could have had no purpose save to authorize and enable in like manner, and to the same extent, the collection of personal taxes which ought in previous years to have been paid, but, by reason of like omission to assess, had not been. This legislative purpose is entirely obvious, and should be
The general purpose of legislation of this class, namely, "to provide means for enforcing the obligation of each individual to contribute to the expenses of government according to the taxable property owned by him, whenever he shall have escaped or evaded that obligation, has many times received the commendation of this and other courts. It is promotive of, nay essential tó, the constitutional behest that taxation be uniform. Tallman v. Janesville, 17 Wis. 71; Cross v. Milwaukee, 19 Wis. 509, 516; Wilcox v. Eagle, 81 Mich. 271. This purpose must in large measure fail if a disposal, consumption, or removal of personal property after the time -when assessment should have been made prevents its reassessment.
The principle at the foundation of these reassessment laws is that the owner of property is under obligation — some authorities say he is indebted —• to the government to pay a sum proportioned to the property owned by him on May 1st of each year. Warden v. Fond du, Lac Co. 14 Wis. 618, 620; Peters v. Myers, 22 Wis. 602; Flanders v. Merrimack, 48 Wis. 567, 572; Sturges v. Carter, 114 U. S. 511, 518. This obligation he owes primarily to the municipality in which certain classes of property are on that date situated, for the municipality, under our system, collects the taxes as trustee for the other branches of government, state, county, and school district.
Several obstacles are suggested by appellant to the enforcement of this statute,' where the omitted property is either not owned by the same person, or is not within the same taxing district at the time of reassessment. First among these is the language of the statute requiring that it be “ entered once additionally ” for each . of the omitted
Again, it is urged that if the property is not in existence it cannot be within the jurisdiction of the assessors. This contention loses sight of the consideration that the whole subject of taxation is within the control of the legislature, subject only to the constitutional requirement of uniformity, and that branch of the government can confer jurisdiction to apportion and collect taxes when and where it deems best. Cross v. Milwaukee, 19 Wis. 509; North Carolina P. Co. v. Comm'rs of Almance, 82 N. C. 259, 268. In the latter case the assessment rested with the township board of trustees at the time the tax should have been levied, but the function had before the time of reassessment been transferred to other officers. The latter were nevertheless held justified in taking the steps necessary for such reassessment and collection authorized by statute.
We reach the conclusion that the legislature did not intend to limit the effect of the amendment of 1899 to such personal property as remains unchanged in ownership and location, but to include any and all which by inadvertent omission escaped assessment, and that such intention is not incapable of enforcement under the circumstances presented in this case.
2. The second question, whether sec. 1059, as amended authorizes the reassessment of personal property omitted .from assessment prior to the amendment, is one of construction merely; for the power of the legislature to so authorize and direct has long since been placed beyond discussion. Flanders v. Merrimack, 48 Wis. 572, and cases there cited. A general rule of construction, sometimes said to apply to-all statutes, and often repeated in our own decisions, is to the effect that statutes are not to be construed as having a retrospective effect unless the intention of the legislature is clearly expressed that they shall so ojierate. Seamans v. Carter, 15 Wis. 548; Finney v. Ackerman, 21 Wis. 268; Vanderpool v. L. C. & M. R. Co. 44 Wis. 663; Jochem v. Dutcher, 104 Wis. 611. This rule is accompanied, however, by another equally well settled, stated by Chancellor Kent (1 Comm. 455), as-follows: “ This doctrine [prospective construction of stat
We think it clear that the act here in question falls within the classification covered by the latter rule. It creates no new obligation, but is purely remedial. As we have already/•said, it is predicated upon the obligation of every individual to pay that proportion of the taxes warranted bjf his property existing at the time when assessment was omitted, and provides further remedial steps for the enforcement of such obligation and collection of the tax when it has failed of payunent through some irregularity or omission in the steps •otherwise prescribed. Considering, then, the construction of sec. 1059, it should be observed that both the form and purpose of the statute are addressed to regulating and directing the conduct of assessors, not to declai-ing rights or •obligations or commanding conduct of those who omit to pay their taxes. The reference to omitted assessments is
This court, construing cli. 222, Laws of 1885, providing' that when public lands once withdrawn from sale are reof-fered they shall first be offered at public sale, held the act, to apply to lands withdrawn before its passage. It was said,, JSTewman, J.: “ This construction does not, as counsel urges,, give the statute a retroactive operation. ... It operates only on a condition existing at the time of its passage or arising afterwards.” State ex rel. Sweet v. Cunningham, 88 Wis. 81, 87. The original of sec. 12105, authorizing reassessment in suits, was unhesitatingly applied in the case of taxes unlawfully assessed before the act, in Plumer v. Marathon. Co. 46 Wis. 171, and Flanders v. Merrimack, 48 Wis. 567. Other statutes affecting remedies have been held to apply immediately to the step directed, although the conditions upon which the law acted grew out of events or acts precedent to the legislation, where the language used was no clearer than that now under consideration. Parker v.
It is true there are cases, some of them cited above, which ignore the consideration that the legislation acts directly only on future acts, and deny to it even indirect retrospective effect upon precedent rights or conduct. We do not impugn the correctness of those decisions, applied as they were to legislation of a different class, not addressed merely to regulating or perfecting remedies for the enforcement of existing obligations. They do not conflict with the rule of such cases as those last cited, which fully justify the conclusion that sec. 1059, with its amendment including personal property, was intended to take immediate effect according to its terms, and to regulate the conduct of assessors thereafter, without regard to whether the omissions to assess occurred before or after 1899; from which conclusion it results that the action of the assessor attacked by appellant was lawful and proper, and that no error was committed by the board vof review in refusing to set it aside.
3. One other contention on part of appellant demands brief consideration. He insists now, on authority of Mitchell v. Plover, 53 Wis. 548, that the lumber belonging to plaintiff was not manufacturers’ stock, but merchants’goods, lie made no contention and offered no evidence before the board of review that the assessor’s designation of it on the roll as manufacturers’ stock was not in accord with the fact. Obviously, lumber may be merchandise when kept for sale, or may be manufacturers’ stock if held for the purpose of being manufactured into furniture, vehicles, or doors. In the absence of any evidence to the contrary, the board of review could not ignore the assessor’s report that it was the latter, and committed no error in refraining from changing the assessment roll in that respect.
By the Oourt.— The order appealed from is affirmed.
There is a trite expression in judicial literature which embodies the idea that compels me to dissent from the decision in this case, namely, It is not the province of the court to make the law but to expound and apply it. The judicial function and that of the lawmaking power are each independent of the other. Those whose duty it is to exercise the one cannot properly cross the boundary line that separates it from the other; though it is true that such line is sometimes so indistinct that judges, deeply imbued with the idea of what was the legislative purpose in making a law, especially if that purpose be strongly promotive of public interests and good citizenship, will sometimes cross it to accomplish such purposes, apparently overlooking those .safeguards to judicial footsteps that have been located along .the judicial pathway by the accumulated wisdom of ages. It seems to the writer that those guides were not strictly •observed in reaching the conclusion of the court in this •case, else a contrary decision would have been the result.
A brief reference to well-recognized rules for judicial construction, which form some of the guides above referred to, .and their application. to the statute upon which this case •turns, will sufficiently show the reasons why I cannot agree with the decision of the court.
We have first the rule, that words which are plain, and in their literal sense lead to no inconsistent or absurd consequence, must be presumed to have been used with their common and .ordinary meaning; and that such presumption must absolutely prevail. “ Absolxita sententia expositore non ■egetB That rule has been a guide for the courts of this country and England through a period covered by the great
It follows that if the words of an act reasonably admit of but one meaning, that meaning must be adopted regardless of the wisdom of the act or whether it will effect the legislative purpose; and that the power to go beyond the ordinary meaning of words is limited by the rule, that if the language of an act be open to judicial construction, a meaning cannot properly be ascribed to it that is not within the reasonable scope of such language, whatever may be the consequences of adhering to that limitation. To go beyond that is to alter the Law and do what the legislature may have in-, tended but failed to do. The ultimate end of judicial construction is not to determine what the legislature meant, but what the language used by the legislature means.
In view of what has been said and the fact that my brethren obviously consider the statute (s.ec. 1059, Stats. 1898) open to judicial construction, we would expect to find that established legal principles were applied to it in order to determine what the language used therein means. But if such application were made, we are unable to discover that it proceeded further than to determine that the legislature evidently intended to provide that personal property, omitted from the tax roll one year, shall be assessed for such year thereafter if the omission be discovered within three years, regardless of any change in the title in the meantime or even of the existence of the property at the time-of remedying the omission. It is assumed, as we take it, that such situation justifies a construction that will effect the legislative idea, whether the meaning attached to the language under consideration is reasonably within its scope
The force of the foregoing will appear by a careful study of the words of the statute under consideration: “Personal property omitted from assessment in any of the three next previous years by mistake or inadvertence, . . . shall
If we are right in the foregoing, then the law under consideration cannot be construed as the court has construed it, except by rejecting entirely the significant word “ additionally.” That is what has in fact been done. If there is any rule of construction that will justify such a course, the writer is not aware of it. Words obviously omitted by mistake, which prevent an act having a sensible effect, and words necessarily implied, may be supplied by judicial construction; but-when an act will admit of a reasonable construction that will give sensible effect to every part of it, the court cannot properly, by judicial construction, curia casusomissus, reject words merely because otherwise the scope of the law will be more limited in its operation than the legislature probably intended, and more than absolute justice requires.
In what has been said we have assumed that it was probably the legislative purpose to remedy mistakes in the omis
I will not further continue the discussion. The grounds of dissent have, in the main, been stated. No good can come from going on merely to further fortify the position here taken by a more careful analysis of the reasons given by tho court for an affirmance of the judgment. It seems that the judgment should be reversed.