Duluth Log Co. v. Town of Hawthorne

120 N.W. 864, 139 Wis. 170, 1909 Wisc. LEXIS 154

• Court: Wisconsin Supreme Court
• Decided: April 20, 1909
• Status: Published

Opinions

Timlin, J.

The amended, complaint in question averred that the plaintiff was a Minnesota corporation owning a stock of merchandise, lumber, logs, and a sawmill and certain described real estate in the town of Eaiuthorne, on all of which the plaintiff was required to pay taxes for the year-1907. One of the defendants is a-town of Douglas county and the othe? is the town treasurer of that town. The assessor of that town placed a valuation of over $10,000 “on the plaintiff’s said property above described.” This valuation was extended upon the tax roll of the defendant town for the year-1907 and a tax of $434.60 levied and charged “against plaintiff’s said property.” This tax roll was delivered to the treasurer, Bonnell, with a warrant authorizing him to collect the-tax, and he threatens and holds out that he will collect the “aforesaid tax and assessments against the plaintiff’s property and compel the payment of the same, and to that end will levy upon and seize the personal property belonging to plaintiff in, the said town, and such collection, levy, and seizure would cause serious loss and irreparable damage to plaintiff’s business.” It is then averred that the assessment of this property was illegal and void because the valuation placed thereon by the assessor is greatly in excess of its actual market value,, etc.; that said assessor purposely and intentionally discriminated in favor of certain residents of the town and against the-property owned by the plaintiff and others as nonresidents, assessing the latter class of property at a higher valuation, and-omitting from the assessment and tax roll property belonging-to town officers and also a large amount of taxable personal, property. Plaintiff is unable to ascertain the amount of tax properly chargeable to it, but is willing to pay, and offers to-pay, the tax properly chargeable to said property as soon as the same can be legally ascertained. It is then averred thát the defendant Bonnell threatens and holds out that he will and the plaintiff is informed that he is about to or has levied upon and seized its personal property on account of the taxes- and assessments aforesaid to its irreparable damage, “unless restrained by the order of this court.”

Tbe relief demanded is that the taxes and assessments in question be declared void and set aside and held for naught, and that the defendant Bonnell, as town treasurer, his deputies, servants, agents, etc., be enjoined and restrained from collecting said taxes or any part thereof, and from levying upon or seizing any of the plaintiff’s property or selling the ■same, or in any manner attempting to enforce the payment of said taxes until the just and equitable amount thereof be ascertained according to law, etc. The demurrer challenges this complaint on the ground that it does not state facts sufficient to constitute a cause of action.

The complaint shows the plaintiff to be the owner of real and personal property subject to assessment and taxation. Without stating the value of either class of property or the valuation fixed by assessment upon either class, it avers that the valuation of all together was fixed by the assessor at .$10,000, which was in excess of its market value, discriminatory, etc. This might be' true and yet the real estate be not improperly assessed. There is consequently no averment that the assessment against the real estate, taken alone, was either excessive or discriminatory. The averments relative to intentional discrimination on the part of the assessor and those relating to the omission of property from the assessment roll specify no property, and are vague and general, in the nature of conclusions of the pleader, and, while they might be sufficient for some purposes, are not sufficient to overcome our impression of the general nature of the action derived from the facts set forth.

The action is against the town and the town officer, neither of which has any right or authority to create a cloud upon the title to the real estate by mere levy under a tax warrant, and- there is no averment that they or either of them intend, ■or are about, to wrongfully cloud the title of the real estate, ■or that the tax on the real property is in any respect unlawful. The relief demanded is merely to prevent the collection of the tax by the town treasurer by levying upon personal property under his tax warrant. We consider this an action brought for that purpose. No such equitable right of action exists against such defendants. The remedy of the plaintiff in such case is to pay the tax under protest and bring suit to recover the unlawful excess, if any. A. H. Stange Co. v. Merrill, 134 Wis. 514, 115 N. W. 116; Keystone L. Co. v. Pederson, 93 Wis. 466, 67 N. W. 696.

What would be the remedy of the plaintiff had it pleaded facts showing an unlawful assessment against its real property we need not.determine, for there is no such case before the court.

By the Court. — The order of the superior court is affirmed»

The following opinion was filed May 3, 1909: