State v. Zillmann

| Wis. | Apr 19, 1904

The following opinion was filed February 23, 1904:

SiubeciceR, T.

Sec. 3295, Stats. 1898, provides that, in an action to recover forfeitures:

“It shall be sufficient to allege in the complaint that the defendant is indebted to the plaintiff in the amount of the forfeiture claimed, according to the provisions of the statute which imposes it, specifying the section and chapter containing such statute. And when such section imposes a forfeiture for several offenses or delinquencies it shall specify the particular offense or delinquency for which the action was brought, with a demand for judgment for the amount of such forfeiture.”

The complaint contains a plain and concise statement of the facts, charging that defendant is indebted to the plaintiff in the amount of the forfeiture, under the provision of the law which imposes it, and specifying the chapter and section of such statute, as well as the particular offense or delinquency for which the action was brought, with a demand for judgment. It is argued that greater strictness of construction should be applied than in ordinary cases, because the recovery sought to be enforced is penal in its nature. It has, however, been determined that the proceeding is a civil action, and that the pleadings are therefore to be construed liberally to meet the ends of justice between the parties. Teetshorn v. Hull, 80 Wis. 162" court="Wis." date_filed="1891-09-29" href="https://app.midpage.ai/document/brown-v-chicago-milwaukee--st-paul-railway-co-8183743?utm_source=webapp" opinion_id="8183743">80 Wis. 162; State v. Smith, 52 Wis. 134" court="Wis." date_filed="1881-04-19" href="https://app.midpage.ai/document/state-v-smith-6603471?utm_source=webapp" opinion_id="6603471">52 Wis. 134, 8 N. W. 870; Chafin v. Waukesha Co. 62 Wis. 463" court="Wis." date_filed="1885-03-03" href="https://app.midpage.ai/document/chafin-v-waukesha-county-6604660?utm_source=webapp" opinion_id="6604660">62 Wis. 463, 22 N. W. 732. Counsel nevertheless lays stress in support of this contention on the utterance of the court in State v. Citizens’ Ins. Co. 71 Wis. 411" court="Wis." date_filed="1888-03-27" href="https://app.midpage.ai/document/state-v-citizens-insurance-co-of-mobile-6606086?utm_source=webapp" opinion_id="6606086">71 Wis. 411, 37 N. W. 348, where it is stated that in an action for a penalty every fact necessary to show that it has been incurred must be stated, and that no rule of liberal construction will dispense with the necessity of stating every fact that creates the liability. It is required in all civil cases' that the facts necessary to constitute the cause of action be alleged, but this requirement in no way changes the rule that pleadings should be liberally construed in such actions. Testing the pleading as a complaint in a civil action, is it sufficient to meet the requirements of the statutes in an action for the recovery of a forfeiture under ch. 379, Laws of 1901 ?' Appellant contends that it fails in several particulars, which will be noticed.

One objection to the complaint is that it does not allege that the personal property was unlawfully, wilfully, and corruptly omitted from assessment, or so omitted without taking evidence on tbe subject. Tbe complaint does allege, in tbe language of tbe' statute, that tbe defendant “did . . . intentionally omit and did . . . intentionally agree witli [otters],” etc., “ ... to omit from assessment, a large amount of personal property, ... all of wbicb property was tben and there liable to taxation,” etc. These allegations in tbe language of tbe statute are sufficient, unless, as claimed, tbe language of tbe statute is so indefinite, obscure, and uncertain that tbe statute fails to define wbat acts shall be deemed an offense and subject tbe offender to the penalty prescribed. Tbe legislative intent seems clear and certain when tbe language employed is given its ordinary signification. Tbe statute, so far as applicable to tbe case before us, provides that:

“Any member of a board of review of any assessment district wbo shall intentionally omit or agree to omit from assessment any property liable to taxation in such assessment district or shall otherwise intentionally violate or fail to perform any duty imposed upon him by law . . ' . shall forfeit” a certain sum of money. Sec. 5, cb. 379, Laws of 1901.

Tbe fair inference from these terms and provisions is that any member of a board of review shall be liable to tbe forfeiture for unlawfully omitting or agreeing to omit from assessment property liable to taxation. This interpretation harmonizes with tbe meaning usually applied to the word “intentionally” when used in penal laws, namely, that it imports wilfulness, evil intent, or unlawful purpose.

It is claimed tbe complaint is insufficient, in that it fails to allege specifically that tbe property was liable to taxation in tbe district May 1, 1903, as required under sec. 1033, Stats. 1898. Tbe complaint alleges that the property specified was liable to taxation in tbe assessment district of wbicb defendant was an officer. Giving this allegation tbe reasonable intendment applicable to pleading, and applying it to tbe statute which provides that all personal property liable to taxation in each assessment district shall be assessed as of the 1st of May in each year, the allegation is sufficient to charge that the property designated was within the district and liable to taxation on May 1, 1903.

The complaint is attacked, in that it affirmatively shows that defendant and the assessor and the clerk on the 24th of August, 1903, met and organized and acted as a board of review, and that the alleged forfeiture was incurred at this meeting. It is objected that the board of review had no authority to meet and organize on that day, because, under sec. 1000. Stats. 1898, the board was required to meet on the last Monday of June to perform this duty, and because, under sec. 1064, the assessment roll must be completed by the assessor and be delivered to the clerk on or before the first Monday in August. It is true, the statutes cited to our attention provide as indicated, but we cannot accede to the 'interpretation urged. To hold that assessing officers and members of boards of review shall be held strictly to the time specified for the performance of their duties under the statutes would result, practically, in a failure to administer the lawi for the assessment of taxes, under the varying difficulties and obstacles inhering in such a course. These provisions of the statutes pertaining to the assessment of taxes must have been intended by the legislature as directory in their execution, and a departure from the letter should not invalidate the action of such officers, unless it be shown that the rights of persons interested were thereby materially affected, to their prejudice. Cooley, Taxation, note on p. 774; Faribault W. Co. v. Rice Co. 44 Minn. 12, 46 N. W. 143.

The suggestion that the complaint is insufficient because it does not specifically describe the property, and thereby apprise the defendant of the charge preferred, and that it fails to allege he acted in his official capacity, cannot be enter-táined. It is stated that personal property liable to taxation in the assessment district was by him, as a member of the board of review of the district where it is situated, intentionally omitted, and that he agreed to omit it, from assessment. This apprises defendant of the delinquency which plaintiff expects to prove against him at the trial, and charges him in his official capacity. If he has any grounds of complaint for indefiniteness, he must resort to his remedy by motion to make more definite and certain.

The last objection, as we apprehend it, is that if the section of the statute in question imposes a penalty on defendant for acts in his capacity as a member of the board of review, recoverable in a civil action, it is void, because it contravenes the spirit of the state constitution, and particularly sec. 22 of article I, and that it is contrary to public justice. The objection presented goes to important natural individual rights, but we are unable to perceive how it applies to the facts under consideration. Under the law, defendant, as a member of the board of review for an assessment district, is required to perform certain official duties in assessing property, which the legislature clearly has the right and power to impose. It has provided that any officer who shall intentionally omit to perform such duty shall be subject to a penalty recoverable in a civil action. The officer’s obligation to execute the mandates of the law in that respect seems too well settled to require discussion. Nor does the form of procedure in any way affect the liability of the person who violates such a law. We cannot conceive how the statute in any way infringes any constitutional provision or violates public justice.

By the Court. — Order affirmed.

A motion for a rehearing was denied April 19, 1904.