State ex rel. Heller v. Lawler
79 N.W. 777
Wis.
1899
Check Treatment
Maeshall, J.

Tbe practice adopted in this case cannot oe approved. Tbe return seems to have been regardеd as an answer to tbe petition instead of a response to tbe commands of tbe writ. Findings of fact were filed, following substantially tbe allegations of tbe petition, upon tbe theory that, not being denied by tbe return, they were admitted and to be considerеd as true in deciding tbe matter presented upon tbe merits. Findings of facts were not required. Tbe cause having been submitted for decision on tbe merits, tbe sole question was whether tbe facts set forth in the return, excluding therefrom all matters introduced into it not prоperly matters of record, justified tbe decision of tbe board which was complained of. Tbe return showed that by tbe uncon-trоverted evidence of tbe relator it was established before the board that tbe assessed value of bis land which was platted was $211.50 per acre, while that of tbe unplatted lands generally, belonging to other persons in tbe same section and vicinity, was fixed at from $87.50' to $118 per acre; that the latter were tbe most valuable; that in order to equalize tbe assessments it was necessary to reduce the as*465sessment of relator’s land to a basis of $75 per acre; and that the board on such evidеnce reduced the assessment of the relator’s land twenty per cent?, and raised that of the unplatted land reférred to about five per cent.

The evidence of the relator being the only evidence produced, and there being nothing, as appears by the record? impairing its credibility, it was the plain duty of ‍​‌​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌‌‍the board to correct the assessed valuation of his property accordingly, and their failure so to do constituted a clear violation of law subject to be correсted by certiorcvri, according to the repeated decisions of this court. In Milwaukee I. Co. v. Schubel, 29 Wis. 444, it was said in relation to a like situation: “ The board was bound to take these uncontradicted statements of the witnesses under oath as to the .value of the property, and should have corrected the assessment roll according to them. Eоr, where the evidence is undisputed, and there is no proof whatever to sustain the decision of the board, they cannot аrbitrarily and capriciously place a value upon the real estate different from that placed upon it by the witnesses. . . . They have no more legal power to decide against all the testimony in respect to the value of proрerty, than a court has to decide against all the evidence produced before it.” And further, in effect, where the boаrd decides upon conflicting evidence admitting of a conclusion either way on a mooted question, such a decisiоn is final; but a decision contrary to credible evidence indisputably establishing a fact, is an excess of jurisdiction, a violation of law, and may be reached by certiorari. The statute is very plain regarding the duty of the board in deciding upon an application tо correct an assessment of property. Sec. 1061, Stats. 1898, provides as follows: “ Any person'claiming any correction оf the assessment may call witnesses to support the same; or to show that any property on the roll is assessed too high or too low.” “The board of review shall, when satisfied from the evidence taken that the assess- *466or’s valuation, is too high or toо low, lower or raise tbe same-accordingly.” Tbe clear intent of that language is to place it beyond tbe power of tbe board of review to change ‍​‌​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌‌‍the valuation of real estate without evidence, and to require them to chаnge such valuation in accordance with evidence. This subject was so recently discussed in Brown v. Oneida Co., ante, p. 149, that it seems useless to pursue it further.

Some question is raised as to the function of the writ of certiorari regarding a mere excess оf jurisdiction or decision in violation of law, where the subject matter and parties are within the jurisdiction of the body whose deсision is challenged. It has been long and well settled, as indicated in the Milwaukee Iron Co. Case, that in proceedings of a summary character, like that of boards of review under our statutes, bodies exercising quasi-judicial powers, not admitting of any other remedy for a direct rеview, clear violations of law in doing those things which are within the jurisdiction of the body to do in a legal manner may be correсted upon common-law writ of certiorari. To the same-effect, State ex rel. Moreland v. Whitford, 54 Wis. 150; State ex rel. Wood Co. v. Dodge Co. 56 Wis. 79. That covers this case. The board of review had jurisdiction to change the assessed valuаtion of the relator’s property; but in making the change in violation of the statute, which required them to decide upon the ‍​‌​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌‌‍rеlator’s application according to the evidence produced before them, they violated the law.. Their dеcision was illegal and void and the court had jurisdiction to so adjudicate upon the return to the writ of cer-tiorari showing the facts.

That part of the judgment requiring the board to reassess the relator’s property is erroneous, but not prejudicial. The .roll having passed beyond the control of the officers having power to change it, the requirement for reassessment was nugatory. It is the practice in mаny jurisdictions, in that situation, to decline to pass upon the merits, and, exercising *467the discretionary power of the court ovеr the remedy, to quash the writ even after return and hearing. People ex rel. L. S. & M. S. R. Co. v. Dunkirk, 38 Hun, 7; People ex rel. Weekes v. Queens Co. 82 N. Y. 275. This court has likewise-held that equitable considerations ‍​‌​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌‌‍may require the quаshing of a writ of certiorari even after a hearing on the merits and appeal to this court from a judgment of affirmance. State ex rel. Schintgen v. Mayor of La Crosse, 101 Wis. 208. That does nоt militate against the rule that unless the circumstances be such that the relator is not entitled to the remedy by certiorari, the оnly proper disposition to make after a return to the writ is a judgment on the Merits. State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4; State ex rel. Cameron v. Roberts, 87 Wis. 292; State ex rel. Bartean v. Circuit Court, 101 Wis. 422. The discretionary power of the ‍​‌​‌​‌‌​​​‌​​​‌​‌‌​‌‌‌​‌‌​‌​‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌​‌‌‍court tо deny the remedy by certiorari has not been invoked in this case, and in view of the fact that the writ was sued out, the hearing upon it had, and judgment rendered while the assessment roll was still in the hands of the town clerk, it would have been contrary to the precedents in this state to hаve done otherwise than retain the writ and decide the matter presented by the return upon the merits, as the trial court did-

By the Coiоrt.— The judgment of the superior court is modified so far as it requires a reassessment or equalization of the assessment of relator’s property, and as so modified is affirmed with costs in favor of the respondent.