By the Court,
Cole, J.
The main question involved in this case, namely, as to what was the effect of omitting the Newhall House, upon the validity of the general taxes of 1857, has already been considered and passed upon in Weeks vs. City of Milwaukee, 10 Wis., 242. It was there held, that the effect of exempting that property from taxation, under the ordinance of the common council of the city, was to render these taxes invalid. The counsel for the appellants, however, in the able and elaborate argument which he addressed to the court, contended that there was a distinction between the cases, and that the ruling in Weeks vs. City of Milwaukee, did not necessarily dispose of this question as it is presented in this record. He supposes that it does not fall within the reason and principle of that decision, because it is alleged in the answer that the assessors omitted this property from the assessment roll in the [191]*191honest belief that the common council, under the provisions of the city charter, had full power to exempt it from taxation. But this is a misapprehension of the doctrine of that decision. It was a conceded point in that case, that the omission of this property was intentional on the part of the city authorities. That is, they knew that this property was there, and that it was liable to taxation like other property, but, from motives of liberality and to encourage the building of so large and commodious a public house, they attempted to exempt it entirely from taxation. It is here averred that the common council passed the ordinance in good faith, honestly believing that they had the legal power and authority to pass the same and relieve the Newhall House property from city and ward taxes and assessments, if, in their judgment, the interest of the city would be advanced thereby; and for the sole purpose of giving effect to the ordinance, the assessors omitted the property from the assessment rolls. This does not essentially vary the question from the Weeks case. In both cases it appears that the property was designedly and purposely omitted from the assessment rolls, and this circumstance takes them out of the rule of that class of decisions, which hold that “ omissions arising from mistakes of fact, erroneous computations or errors of judgment on the part of those to whom the execution of the taxing laws is entrusted, do not necessarily vitiate the whole tax.” In other words, it is an intentional, in contradistinction to an accidental omission of the property which affects the validity of the tax. The rule must have this limitation, otherwise the citizen would have no relief, whether the taxing officers complied with the laws and constitution or not. Indeed, upon any other theory, one might say that the greater the ignorance of those officers of their duties, and the more flagrant the violation of law in assessing and levying the tax, the more legal and valid it becomes. For suppose the common council of the city, for the purpose of inviting capital to their city and encouraging its trade and commerce,. [192]*192should pass an ordinance exempting from taxation all the merchandise, money and other property, in the honest belief that they had the legal power to do this, and the assessors, to give effect to such an ordinance, and supposing it was valid, should omit that class of property altogether from the assessment rolls, and only list the real estate, would any one contend that such an error of judgment on the part of the officers, both as to their duties and powers under the law, would not invalidate the tax ? Probably not. And why ? Because the exemption of the property was intentional, and the authorities undertook to suspend and nullify the laws in respect to it, which they obviously had no rigln to do. Yet, does it render their action legal because they honestly supposed they had this power to go contrary to law ? It seems to us not.
It is possible that cases may be found in conflict with this doctrine, but if so, we are not disposed to follow them. We prefer to adhere to the principle laid down in Weeks vs. City of Milwaukee, as being more just, safe and reasonable. For if public officers may disregard the law, and deliberately and purposely omit from the assessment rolls property which they know is liable to taxation, because by so doing they imagine some “great public benefit” will be secured, and still the citizen whose tax has been increased thereby can have no relief, but must pay the same, there would seem to be little value in laws regulating the levying and collection of public revenues. It might as well be left to the discretion or caprice of the officers to impose the burdens of taxation as they might think proper.
But it is insisted that if an intentional omission of property invalidates a tax, that the same result ought to follow when .property is omitted through accident, mistake or error of judgment ; that the consequence to the citizen is the same in both cases, who has to pay more than his just proportion of the tax, and therefore if he is not relieved in one case, he should not be in the other. If he is equally oppressed, why, it is asked, should a court of equity afford -a remedy in the former con tin-[193]*193gency and deny it in tbe latter ? Or what reason can there be in. applying a different rule to the two cases ?
In each case a court of equity unquestionably considers the tax-payer equally injured, whether the omission by which his tax was increased were intentional or accidental. By either means he is compelled to pay more than his just share of the expenses of the government. But in the one case the error arises from the fallibility of men and the imperfection of human institutions. Revenue is essential to the support of government. The'execution of revenue laws is necessarily intrusted to men who, at best, will make mistakes in levying and collecting taxes. The assessor will frequently fail to get a list of all the taxable property within his jurisdiction, however vigilant and careful he may be. This is unavoidable. But if the tax is always to be avoided because through these mistakes and omissions, property subject to taxation has escaped its proper burdens, then no tax could ever be collected. Hence the citizen, as the price of government and of social order, must sometimes pay more than his just share of taxes. It may be a hardship that he should do this, but this is more than counter-balanced by the advantages he receives from protection to his life, liberty and property. But there is ho necessity for public officers to disregard the law, and intentionally omit to list property. They know where the property is, and know that it is subject to taxation. But they purposely omit it from the assessment rolls for some reason, assuming that they may have power to exempt it. Therefore a court of equity may with much propriety hold, that an error unavoidable in its character must be submitted to in the one case, though the effect of it may be to improperly increase the burdens of taxation upon some ; while it grants relief to one whose taxes have been increased by an intentional disregard of the laws on the part of those to whom their execution had been committed. The cases are clearly distinguishable from each other, and [194]*194the reason for exonerating a party from the payment of bis tax in the one case, does not exist in the other.
The counsel likewise supposed that the rule laid down in Weeks vs. City of Milwaukee, was in conflict with the decisions in Kelly vs. Corson, 10 Wis., 1; Mills vs. Gleason, id., 470; Warden vs.
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By the Court,
Cole, J.
The main question involved in this case, namely, as to what was the effect of omitting the Newhall House, upon the validity of the general taxes of 1857, has already been considered and passed upon in Weeks vs. City of Milwaukee, 10 Wis., 242. It was there held, that the effect of exempting that property from taxation, under the ordinance of the common council of the city, was to render these taxes invalid. The counsel for the appellants, however, in the able and elaborate argument which he addressed to the court, contended that there was a distinction between the cases, and that the ruling in Weeks vs. City of Milwaukee, did not necessarily dispose of this question as it is presented in this record. He supposes that it does not fall within the reason and principle of that decision, because it is alleged in the answer that the assessors omitted this property from the assessment roll in the [191]*191honest belief that the common council, under the provisions of the city charter, had full power to exempt it from taxation. But this is a misapprehension of the doctrine of that decision. It was a conceded point in that case, that the omission of this property was intentional on the part of the city authorities. That is, they knew that this property was there, and that it was liable to taxation like other property, but, from motives of liberality and to encourage the building of so large and commodious a public house, they attempted to exempt it entirely from taxation. It is here averred that the common council passed the ordinance in good faith, honestly believing that they had the legal power and authority to pass the same and relieve the Newhall House property from city and ward taxes and assessments, if, in their judgment, the interest of the city would be advanced thereby; and for the sole purpose of giving effect to the ordinance, the assessors omitted the property from the assessment rolls. This does not essentially vary the question from the Weeks case. In both cases it appears that the property was designedly and purposely omitted from the assessment rolls, and this circumstance takes them out of the rule of that class of decisions, which hold that “ omissions arising from mistakes of fact, erroneous computations or errors of judgment on the part of those to whom the execution of the taxing laws is entrusted, do not necessarily vitiate the whole tax.” In other words, it is an intentional, in contradistinction to an accidental omission of the property which affects the validity of the tax. The rule must have this limitation, otherwise the citizen would have no relief, whether the taxing officers complied with the laws and constitution or not. Indeed, upon any other theory, one might say that the greater the ignorance of those officers of their duties, and the more flagrant the violation of law in assessing and levying the tax, the more legal and valid it becomes. For suppose the common council of the city, for the purpose of inviting capital to their city and encouraging its trade and commerce,. [192]*192should pass an ordinance exempting from taxation all the merchandise, money and other property, in the honest belief that they had the legal power to do this, and the assessors, to give effect to such an ordinance, and supposing it was valid, should omit that class of property altogether from the assessment rolls, and only list the real estate, would any one contend that such an error of judgment on the part of the officers, both as to their duties and powers under the law, would not invalidate the tax ? Probably not. And why ? Because the exemption of the property was intentional, and the authorities undertook to suspend and nullify the laws in respect to it, which they obviously had no rigln to do. Yet, does it render their action legal because they honestly supposed they had this power to go contrary to law ? It seems to us not.
It is possible that cases may be found in conflict with this doctrine, but if so, we are not disposed to follow them. We prefer to adhere to the principle laid down in Weeks vs. City of Milwaukee, as being more just, safe and reasonable. For if public officers may disregard the law, and deliberately and purposely omit from the assessment rolls property which they know is liable to taxation, because by so doing they imagine some “great public benefit” will be secured, and still the citizen whose tax has been increased thereby can have no relief, but must pay the same, there would seem to be little value in laws regulating the levying and collection of public revenues. It might as well be left to the discretion or caprice of the officers to impose the burdens of taxation as they might think proper.
But it is insisted that if an intentional omission of property invalidates a tax, that the same result ought to follow when .property is omitted through accident, mistake or error of judgment ; that the consequence to the citizen is the same in both cases, who has to pay more than his just proportion of the tax, and therefore if he is not relieved in one case, he should not be in the other. If he is equally oppressed, why, it is asked, should a court of equity afford -a remedy in the former con tin-[193]*193gency and deny it in tbe latter ? Or what reason can there be in. applying a different rule to the two cases ?
In each case a court of equity unquestionably considers the tax-payer equally injured, whether the omission by which his tax was increased were intentional or accidental. By either means he is compelled to pay more than his just share of the expenses of the government. But in the one case the error arises from the fallibility of men and the imperfection of human institutions. Revenue is essential to the support of government. The'execution of revenue laws is necessarily intrusted to men who, at best, will make mistakes in levying and collecting taxes. The assessor will frequently fail to get a list of all the taxable property within his jurisdiction, however vigilant and careful he may be. This is unavoidable. But if the tax is always to be avoided because through these mistakes and omissions, property subject to taxation has escaped its proper burdens, then no tax could ever be collected. Hence the citizen, as the price of government and of social order, must sometimes pay more than his just share of taxes. It may be a hardship that he should do this, but this is more than counter-balanced by the advantages he receives from protection to his life, liberty and property. But there is ho necessity for public officers to disregard the law, and intentionally omit to list property. They know where the property is, and know that it is subject to taxation. But they purposely omit it from the assessment rolls for some reason, assuming that they may have power to exempt it. Therefore a court of equity may with much propriety hold, that an error unavoidable in its character must be submitted to in the one case, though the effect of it may be to improperly increase the burdens of taxation upon some ; while it grants relief to one whose taxes have been increased by an intentional disregard of the laws on the part of those to whom their execution had been committed. The cases are clearly distinguishable from each other, and [194]*194the reason for exonerating a party from the payment of bis tax in the one case, does not exist in the other.
The counsel likewise supposed that the rule laid down in Weeks vs. City of Milwaukee, was in conflict with the decisions in Kelly vs. Corson, 10 Wis., 1; Mills vs. Gleason, id., 470; Warden vs. Supervisors of Lafayette Co., 14 id., 618; and Miltimore vs. Supervisors of Rock Co., 15 id., 9. We do not so understand those decisions. In Kelly vs. Corson it did not appear that the party resisting the payment of the tax, was in any view injured by the unauthorized action of the board of equalization, even assuming that they erred in regard to their powers. He therefore bad no ground of complaint. In Mills vs. Gleason the objection was based upon a mere non-compliance with some directions of the statute, notwithstanding which the tax may have been entirely just and equal. It was held that such an objection, even if welL founded, did not vitiate the tar. In Warden vs. Supervisors of Lafayette Co., and Miltimore vs. Supervisors of Rock Co., the error complained of did not increase the taxes which the parties were bound to pay. In each ease the amount of tax which the party ought to pay was readily ascertained from the complaint itself, or the court was able to say from the complaint, that the error or inequality operated to the benefit insleadof injury of the resisting taxpayer. It is very obvious that those cases did not present a strong ground for equitable interposition. But no such reason exists in this case for denying the respondent relief. However, we think be is only entitled to relief upon condition of paying the taxes which are legal find which in justice he ought to pay.
He states in bis complaint that there were certain special and ward taxes assesssd against his lots which, of course, could not be changed or affected by the omission of the Newhall property, as that was situated in another ward. Why should he be exempt from paying those taxes ? He knows the amount, and has not attempted to impeach or question their justice or correctness, except that there was an omission [195]*195of property in another ward. But how could such omission affect the ward and special taxes ? Clearly it could not. And therefore, before a court of equity will cancel the certificates and perpetually restrain the proceedings, it seems hut just to require the respondent to pay the taxes which are valid and to which there does not appear to be any objection. Warden vs. Supervisors La Fayette Co., and Miltimore vs. Supervisors of Rock Co., supra.
Upon the same ground it was contended that the respondent should be compelled to pay his just share of the general tax of 1857, which should have been assessed against his property. It is claimed that by the public records and other means it can be precisely ascertained how much those taxes were increased by the error complained of. It is very clear that no such question is in this case, for the reason that no testimony was offered on the trial; and it is impossible for us to say, upon the record, whether the matter was susceptible of computation or not. It would seem to involve the necessity of a re-assessment of the property of the city, and a re-adjustment of the taxes for that year in order to ascertain the amount which each tax-payer ought to pay. But whether this is so or not, we are not called upon to decide, because the question is not presented by anything in this record. Not so, however, in respect to the special and ward taxes. The respondent shows what they amount to, in the complaint itself. He therefore ought to pay the legal taxes, before he is entitled to relief against the illegal taxes.
The judgment of the circuit court must be modified, so as to conform to this decision; but without costs to either party, because the point upon which the judgment is modified, was not made in the court below.
Judgment accordingly.