207 Wis. 436 | Wis. | 1932
Lead Opinion
The following opinion was filed February 9, 1932 :
In 1909 Dean Turneaure and Mrs. Johnson entered into a contract with the firm, John Wiley & Sons, for the publication of a text-book. By the terms of this contract Turneaure and Johnson agreed to bear one-half of the cost of electrotyping, manufacturing, and publishing the first edition of copies of the work. The cost of subsequent editions was to be borne by Turneaure and Johnson. The publishers were to print the books, distribute them, and receive forty-five per cent, of the retail price of the books on all export sales and fifty per cent, on all domestic sales, and of the amounts paid to Turneaure and Johnson each was to receive one-half. During the years 1922 to 1927, inclusive, the plaintiffs received considerable sums by'way of returns on this contract. The net earnings under this contract were returned as taxable income by the taxpayers, taxes being paid when due without objection. On March 18, 1929, Turneaure filed a claim for a refund, claiming that the
The last sentence was added by amendment in 1927. Prior to that time there was no statutory requirement as to the persons upon whom service was to be made.
The questions presented are: (a) Must service be made under the statute as it stood before the amendment,'and (b) if so, upon whom? There béing no statutory provision for service of notice of appeal, we must look to general principles of law for a solution of these questions. It is to be noted that the appeal is provided for the purpose of bringing before another administrative tribunal the determination of the county board of review.
At common law a writ of error was regarded as the commencement of a new suit. The right to a review by writ of error existed independently of statute. An appeal, on the other hand, was originally regarded as a continuation of the original suit, was purely statutory in origin, and the right to appeal was dependent upon compliance with the statute. Appeals are ordinarily taken by service of a notice. It is of the very essence of the proceeding that a notice be served upon all adverse parties and most statutes relating to appeals include this requirement. In this statute that requirement seems to have been assumed or is necessarily implied. It is highly improbable that the legislature intended that in so
The appeal in the first case was by the assessor of incomes and was entitled:
“In the matter of the Refund of Mrs. Phoebe Johnson.
“To Miss Selma Fjelstad, .
“Clerk, Dane County Board of Review,
“Court House,
“Madison, Wisconsin.
“Please take notice that the undersigned, the assessor of incomes for Dane county, being dissatisfied with the determination of the board of review which was made on March 30th in the matter of the refund of certain income taxes of Mrs. Phoebe Johnson, herewith appeals from said decision to the Wisconsin Tax Commission.
“Dated this 2d day of April, 1929.
“H. R. Briggs, “Assessor of Incomes.”
On the back of this notice appears the following:
“Served this second day of April, 1929.
“Frank H. Ray.
“Selma Fjelstad.”
In the claim of Turneaure there is a similar notice of appeal but it is unsigned, there appearing in typewriting: “-,‘ Assessor of Incomes.”
Pursuant to the attempted appeal, the county clerk, who is ex officio the clerk of the county board of review, certified and returned the record in the proceedings to the Tax Commission. It is held that failure to serve notice upon the adverse party is fatal to the appeal unless the defect was waived by claimants. So far as the record before the Tax Commission shows, no objection of any kind was raised to the jurisdiction of that body by reason of the failure to serve the notice of appeal or by reason of an insufficient notice of appeal in the Turneaure case. While the claims are in fact separate, that, is, neither claimant has any interest in the claim
It is quite obvious that a more liberal rule should be applied to removal of a cause from one administrative tribunal to another than from one court to another because the procedure is much more informal. The record discloses that there was a good-faith attempt to remove the case from the county board of review to the Tax Commission by appeal; that claimants appeared before the Tax Commission and raised no question with respect to the jurisdiction of that
The question upon the merits in this case is somewhat different than in Whitbeck v. Tax Commission and companion cases, ante, p. 58, 239 N. W. 655, 657, 240 N. W. 640, but the situation as to appearance before the county board of review is the same in all cases. These cases are ruled by the Whitbeck Case, where upon motions for rehearing the construction of the statutes involved is reconsidered.
By the Court. — Judgment in each case affirmed.
The following opinion was filed April 5, 1932 :
Rehearing
Upon motion for rehearing our attention is called to the fact that in the appeal of Turneaure to the Tax Commission objection was made on the ground that the Tax Commission should not take jurisdiction for the reason “that no proper appeal was ever taken from the decision of the income tax board of review under the statutes.” On the part of the Tax Commission it is argued that the construction placed on sec. 71.15, Stats., is too narrow and restricted and erroneous. We find nothing in the statutes described as the income tax board of review. This was no doubt intended to refer to and should be construed as referring to the county board of review, provision for which is made by sec. 71.13, and we so construe it. .
The error in the decision filed February 9, 1932, arose out of the fact that the records were returned and the cases were tried as identical in their facts. It now appears that
Upon a reconsideration of the matter we reach the conclusion that what is described as an appeal in sec. 71.15 is not strictly an appeal, but is a provision whereby, upon application of either party, the secretary of the county board of review is required to certify the record to the Tax Commission and upon such certification the Tax Commission is authorized and required to review the assessment upon the record transmitted to it. No provision is made for the taking of further evidence before the Tax Commission nor is the Tax Commission required to receive briefs or hear oral arguments upon the review by it of the record made before the county board of review. By the provisions of sec. 71.15, set out in the margin,
Much confusion has arisen in this case because of the fact that the record of the claims filed by the plaintiff in this action and by Mrs. Johnson in the companion case were not kept separate. It was that fact which led to the error in regard to the objections made. In the file in the Turneaure case nothing appears prior to the appeal from the findings, decision, and order of the Tax Commission dated August 4,
In the original opinion the statement is made that the claimant appeared before the Tax Commission. This was based upon a statement in the opinion of the Tax Commission. We are informed by counsel that this refers to the hearing before the county board of review. The correction is made in the interest of accuracy. Claimant did file a brief but no hearing was had.
By the Cotirt. — Motion for rehearing denied, without costs.
71.15 Appeals to tax commission by persons other than corporations. (1) Any person, including the assessor of incomes, dissatisfied with any determination of the county board of review may appeal within twenty days after the date of such determination to the tax commission, to whom a copy of the record of the board shall be certified, together with all evidence or a copy thereof, relating to such assessment. A copy of the notice of appeal shall be served upon the tax commission.
(2) The tax commission shall review such assessments from the record thus submitted, and shall make necessary corrections and certify its conclusion to the county clerk, who shall duly notify the person liable for the taxes, and the assessor of incomes shall enter the corrected assessment on the assessment roll and certify the proper tax in the same manner as other income taxes are certified.