Pinney, J.
1. It is provided by sec. 1164, S. & B. Ann. Stats., that “ any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, city or village, may have and maintain an action against such town, city or village for the recovery of all moneys so unlawfully levied and collected of him: . . . provided, however, that no action shall be maintained under the provisions of this section unless it be made to appear to the court that the plaintiff has paid more them his equitable share of such taxes.” The plaintiffs were engaged in logging and lumbering at Rhinelander, in the town of Pelican; and it was their duty under the law to make a fair and truthful return of their personal property liable to taxation in that town, to the assessor. There is no claim that they had any personal property so liable to assessment, except saw logs and lumber manufactured therefrom. They sought to recover that part of the entire tax which was based wholly on the addition to their assessment, without notice, of two items,— one of $2,500, for 1,000,000 of logs “on the Soo railroad;” and $20,000 for timber. The defendant town sought to show that the plaintiffs had logs and lumber subject to assessment and taxation in the defendant town for that year, to an amount and value so that they ought to have paid as large and perhaps a larger tax than they in fact paid. The statute applies the rule in equity in respect to relief on account of illegality in the assessment and collection of taxes, denying all relief unless it is made to appear that the tax proceedings are not only illegal and void, but [509] that they are inequitable. The statute, as applied to the present case, operates, we think, to prevent a recovery by the plaintiffs of the amount extended on the illegal additions to their assessment, for personal property not listed by-them, upon which, when fairly assessed, they should have been taxed in a like amount, or which would reduce their recovery to such sum as is in excess of their equitable share of the taxes of the town for that year. The rule governing equitable interference in cases of illegal or void taxation was stated in Hixon v. Oneida Co. 82 Wis. 515-531, where numerous cases in this court on that subject are cited; and it was held that a court of equity will not interfere to declare a tax invalid and restrain its collection, unless the objections to the proceedings go to the very groundwork of the tax, and necessarily affect materially its principle, and show that it must be unjust and unequal; that it is not enough to show that the tax proceedings are irregular or void, but it must also appear that they are inequitable. Proof of illegal and void additions to the assessment, which increased the taxes of the party bringing the action, may show a jprima facie case, but the defendant is entitled, at least, to rebut it, and to show, by way of vindicating the tax in equity and justifying the retention of the money sued for, that, had the party made a fair and trüthful return of his property, he would have been properly taxed for the entire amount or a material part of the alleged illegal tax. The plaintiff in such action cannot be allowed to take advantage of his own neglect or breach of duty under the law, ,so as to recover out of the treasury money he has paid into it under protest, and which it was in fact his duty, in equity and good conscience, to have thus paid in the first instance.
2. It is evident that the circuit court held that the 5,000,000 feet of logs, or thereabouts, cut in Forest county and brought by rail to the town of Pelican, and which on May 1, 1892, had not been sawed into lumber, were not liable to assess[510] ment and taxation in that town. The judgment of that court goes upon the ground that the plaintiffs were not liable to be assessed for saw logs in that town for 1892 for a greater sum than $8,250. The evidence, in the most favorable view that can be taken of it for the plaintiffs, shows that they should have been assessed for not less than 3,000,000 feet of logs cut in the town of Pelican during the previous logging season, at a valuation of $4,500. What view the court adopted in respect to the portion of logs cut in that town, and not delivered by May 1, does not clearly appear. The plaintiff Day testified that he did not intend to include in the assessment as returned any logs cut in Forest county, and it would seem that the court adopted the assessment as returned by the plaintiffs, and gave judgment accordingly. The 5,000,000 feet of Forest county logs that had been cut within six months previous to April 1, 1892, and which appeared to have been piled in Forest county for shipment, and were actually shipped into the town of Pelican some days prior to that date, were worth about $50,000, and, if assessed at forty per cent, of their value (the rate in use by the assessor that year), would have added $20,000 to the plaintiffs’ assessment. We think that these logs should have been assessed to the plaintiffs as of the 1st of May in that year, and that they never had a situs for assessment and taxation in th'e town in Forest county where they were piled for shipment.
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Pinney, J.
1. It is provided by sec. 1164, S. & B. Ann. Stats., that “ any person aggrieved by the levy and collection of any unlawful tax assessed against him in any town, city or village, may have and maintain an action against such town, city or village for the recovery of all moneys so unlawfully levied and collected of him: . . . provided, however, that no action shall be maintained under the provisions of this section unless it be made to appear to the court that the plaintiff has paid more them his equitable share of such taxes.” The plaintiffs were engaged in logging and lumbering at Rhinelander, in the town of Pelican; and it was their duty under the law to make a fair and truthful return of their personal property liable to taxation in that town, to the assessor. There is no claim that they had any personal property so liable to assessment, except saw logs and lumber manufactured therefrom. They sought to recover that part of the entire tax which was based wholly on the addition to their assessment, without notice, of two items,— one of $2,500, for 1,000,000 of logs “on the Soo railroad;” and $20,000 for timber. The defendant town sought to show that the plaintiffs had logs and lumber subject to assessment and taxation in the defendant town for that year, to an amount and value so that they ought to have paid as large and perhaps a larger tax than they in fact paid. The statute applies the rule in equity in respect to relief on account of illegality in the assessment and collection of taxes, denying all relief unless it is made to appear that the tax proceedings are not only illegal and void, but [509] that they are inequitable. The statute, as applied to the present case, operates, we think, to prevent a recovery by the plaintiffs of the amount extended on the illegal additions to their assessment, for personal property not listed by-them, upon which, when fairly assessed, they should have been taxed in a like amount, or which would reduce their recovery to such sum as is in excess of their equitable share of the taxes of the town for that year. The rule governing equitable interference in cases of illegal or void taxation was stated in Hixon v. Oneida Co. 82 Wis. 515-531, where numerous cases in this court on that subject are cited; and it was held that a court of equity will not interfere to declare a tax invalid and restrain its collection, unless the objections to the proceedings go to the very groundwork of the tax, and necessarily affect materially its principle, and show that it must be unjust and unequal; that it is not enough to show that the tax proceedings are irregular or void, but it must also appear that they are inequitable. Proof of illegal and void additions to the assessment, which increased the taxes of the party bringing the action, may show a jprima facie case, but the defendant is entitled, at least, to rebut it, and to show, by way of vindicating the tax in equity and justifying the retention of the money sued for, that, had the party made a fair and trüthful return of his property, he would have been properly taxed for the entire amount or a material part of the alleged illegal tax. The plaintiff in such action cannot be allowed to take advantage of his own neglect or breach of duty under the law, ,so as to recover out of the treasury money he has paid into it under protest, and which it was in fact his duty, in equity and good conscience, to have thus paid in the first instance.
2. It is evident that the circuit court held that the 5,000,000 feet of logs, or thereabouts, cut in Forest county and brought by rail to the town of Pelican, and which on May 1, 1892, had not been sawed into lumber, were not liable to assess[510] ment and taxation in that town. The judgment of that court goes upon the ground that the plaintiffs were not liable to be assessed for saw logs in that town for 1892 for a greater sum than $8,250. The evidence, in the most favorable view that can be taken of it for the plaintiffs, shows that they should have been assessed for not less than 3,000,000 feet of logs cut in the town of Pelican during the previous logging season, at a valuation of $4,500. What view the court adopted in respect to the portion of logs cut in that town, and not delivered by May 1, does not clearly appear. The plaintiff Day testified that he did not intend to include in the assessment as returned any logs cut in Forest county, and it would seem that the court adopted the assessment as returned by the plaintiffs, and gave judgment accordingly. The 5,000,000 feet of Forest county logs that had been cut within six months previous to April 1, 1892, and which appeared to have been piled in Forest county for shipment, and were actually shipped into the town of Pelican some days prior to that date, were worth about $50,000, and, if assessed at forty per cent, of their value (the rate in use by the assessor that year), would have added $20,000 to the plaintiffs’ assessment. We think that these logs should have been assessed to the plaintiffs as of the 1st of May in that year, and that they never had a situs for assessment and taxation in th'e town in Forest county where they were piled for shipment.
In the case of State ex rel. Holt L. Co. v. Bellew, 86 Wis. 189, the question was whether logs that had been cut and banked in the town of Armstrong six months before April 1, and on that date remained in such town, were lawfully, subject to assessment in said town, or whether an assessment thereof in the city of Oconto, where it was intended that they should be manufactured into lumber, could be supported; and it was held in that case that all saw logs cut within six months prior to April 1, under sec. 2, ch. 413, [511] Laws of 1891, were to be assessed in the assessment district in which they were banked or piled, except logs which were to be sawed or manufactured in a mill in this state owned by the owner of such logs, and they could be brought under the operation of the exception in the act only by a strict compliance with the proviso following the exception in sec. 2 of this act. The decision in that case is clearly correct, but the case did not involve the present question of the place of assessment of logs cut within six months, and piled for shipment prior to April 1, and which, before• that date, had been shipped to the mill in another assessment district, where they were to be manufactured into lumber. The language used in the opinion, owing to its generality, and by reason of not having been expressly limited to the case before the court, is susceptible, perhaps, of a broader application than was intended, but this was the fault of the writer. By the second section of ch. 473 of the Laws of 1891, it is provided that “ all saw logs . . . cut in this state within six months prior to the 1st day of April of any year shall be assessed in the assessment district tohere the same shall be banked or piled for driving or shipment either by water or railroad, except that saw logs and timber which aré to be sawed or manufactured in any mill within this state which is owned by the owner of such logs or timber, shall be assessed as manufacturers’ stock, in the district where such mill may be located; provided, such owner or owners shall on or before the 15th day of June of each year, file with the assessor in the assessment district where such logs awe banked or piled as aforesaid an affidavit showing,” etc. The third section of the act shows more clearly the scope and effect of the section just cited. It provides that “ it shall be the duty of the assessor of the assessment district in which any such saw logs . . cut within six months prior to the first of April, may be banked or piled as aforesaid, to ascertain the amount of such property which may [512] be or may have been in his assessment district at omy time during the month of April in each year, by actual view as far as practicable to fix the value of such property, and assess the same to the owner thereof as of April 1, of each year, as other property is assessed; ” showing that the: assessor of such district has no duty to perform in respect to logs removed therefrom prior to April 1, but is authorized to assess only logs that remain in his district April 1, or may have been therein during the said month of April. We hold, therefore, that the 5,000,000 feet of Forest county logs, cut within six months previous to April 1, 1892, and piled for shipment in that county, and which had been shipped previous to that date into the town of Pelieom, were subject to assessment and taxation therein in 1892, and should have been listed by the plaintiffs for that purpose. It follows, therefore, that the plaintiffs must deduct from their claim in this action the amount of the taxes that should have been assessed and charged against them on account of these logs. To this extent, at least, it is clear that they cannot be said to be “ aggrieved ” by the tax illegally assessed against them, and as to that amount it is plain that (they have not “ paid more than their equitable share ” of the taxes of the defendant town for 1892. S. & B. Ann. Stats, sec. 1164.
3. The plaintiffs were not liable, we think, to be assessed in the defendant town for the lumber manufactured out of that portion of the Forest county logs that had been sawed prior to May 1, 1892, and turned over on that day to the Keller Lumber Company and to Palmer, Fuller & Co. Personal property, in general, is required to be assessed as of the 1st day of May in each year. The making of the assessment as of that date involves the question .of ownership, and in many cases of location or situs of property for taxation. It would be unreasonable and unjust to hold, in respect to a sale and transfer of title perfected May 1, that the prop[513] erty so sold might be assessed to the vendor, and to the vendee as well, by reason of both having held the title thereto on that day. The manifest equity in such case would seem to require that the mere liability of the property to assessment should attend the transfer of title; and the statute (sec. 1, ch. 473, Laws of 1891), which provides that “ no change of location or sale of any personal property ■after the first day of May in any year shall affect the assessment made in such year,” seems to support that view. The assessment is required to be made after that date, but in general as of that date. An assessment of such property, under the circumstances, to the vendee, would, no doubt, be supported.
4. There is no evidence in the case that would seem to justify an assessment against the plaintiffs for 1892 for the 1,000,000 of logs added to their list as being “ on the Soo railroad.” The evidence fails to show whether these logs were ever brought into the town of Pelican, or, indeed, anything satisfactorily about them. The evidence in the case in respect to the quantity, as well as the value, of the logs cut in the town of Pelican, for which the plaintiffs should have been assessed, is quite uncertain and unsatisfactory, .and so, too, as to the quantity of logs brought from Forest -county. As the judgment of the circuit court must be reversed on account of the error in respect to the liability of the plaintiff to be assessed and taxed for the logs brought from Forest county, and which had not been sawed prior to May 1, we will, under the circumstances, reverse the judgment of the circuit court, and direct a new trial of all the issues in the case.
By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.