State ex rel. Davis & Starr Lumber Co. v. Pors

51 L.R.A. 917, 83 N.W. 706, 107 Wis. 420, 1900 Wisc. LEXIS 274

• Court: Wisconsin Supreme Court
• Decided: September 25, 1900
• Status: Published

Opinion

Dodge, J.

1. The circuit court having expressly declared that it quashed the writ of certiorari “ on the merits,” we, for the purposes of this review, shall consider its action as tantamount to a judgment of affirmance, in the light of State ex rel. Gray v. Common Council of Oconomowoc, 104 Wis. 622, 628, and authorities there cited. Upon such consideration two principal questions arise, and have been debated with much vigor by counsel: first, whether sec. 1059, Stats. 1898, as amended by ch. 50, Laws of 1899, authorizes reassessment upon any omitted personal property which between the time of its omission and the time of reassessment has passed out of existence, out of the ownership of the person assessed, or but of the assessment district; second, whether such act authorizes reassessment of personal property omitted prior to the amendment.

Sec. 1059, with the amendment in brackets, provides: “ Deal [or personal] property omitted from assessment in any of the three next previous years by mistake or inadvertence, unless previously reassessed for the same year or years, shall be entered once additionally for each previous year of such omission, designating each such additional entry as omitted for the year 18— [giving year of omission], and affixing a just valuation to each entry for a former year as the same should then have been assessed according to his best judgment, and taxes shall be apportioned and collected on the tax roll, for such entry.”

This section had for many years served to authorize, and ■with the aid of the general taxing machinery to enable, the assessment and collection of omitted taxes on real estate. The addition of personal property to the subjects affected thereby could have had no purpose save to authorize and enable in like manner, and to the same extent, the collection of personal taxes which ought in previous years to have been paid, but, by reason of like omission to assess, had not been. This legislative purpose is entirely obvious, and should be .given complete effect, unless insuperable obstacles prevent. Harrington v. Smith, 28 Wis. 43, 59; Brown v. Pendergast, 7 Allen, 427; 7 Lawson, Rights, Rem. & Pr. 5922; State ex rel. Heiden v. Ryan, 99 Wis. 123.

The general purpose of legislation of this class, namely, "to provide means for enforcing the obligation of each individual to contribute to the expenses of government according to the taxable property owned by him, whenever he shall have escaped or evaded that obligation, has many times received the commendation of this and other courts. It is promotive of, nay essential tó, the constitutional behest that taxation be uniform. Tallman v. Janesville, 17 Wis. 71; Cross v. Milwaukee, 19 Wis. 509, 516; Wilcox v. Eagle, 81 Mich. 271. This purpose must in large measure fail if a disposal, consumption, or removal of personal property after the time -when assessment should have been made prevents its reassessment.

The principle at the foundation of these reassessment laws is that the owner of property is under obligation — some authorities say he is indebted —• to the government to pay a sum proportioned to the property owned by him on May 1st of each year. Warden v. Fond du, Lac Co. 14 Wis. 618, 620; Peters v. Myers, 22 Wis. 602; Flanders v. Merrimack, 48 Wis. 567, 572; Sturges v. Carter, 114 U. S. 511, 518. This obligation he owes primarily to the municipality in which certain classes of property are on that date situated, for the municipality, under our system, collects the taxes as trustee for the other branches of government, state, county, and school district.

Several obstacles are suggested by appellant to the enforcement of this statute,' where the omitted property is either not owned by the same person, or is not within the same taxing district at the time of reassessment. First among these is the language of the statute requiring that it be “ entered once additionally ” for each . of the omitted years; the argument being that if the property cannot be-entered originally against the person for assessment that year it cannot be entered “ additionally ” for preceding-years. The language, of course, is not entirely apt as applied to the supposed situation, but it was used originally with reference to real estate, and accomplished the result of securing its reassessment for the years of omission. We-have no doubt from the manner of the amendment that the-legislative purpose contemplated the result rather than the-clerical method by which it was accomplished. Plum v. Fond du Lac, 51 Wis. 393, 397. The appellant’s objection is very technical and refined, hardly less so than would be the suggestion that the entry of any amount for preceding years must of necessity be “ additional ” to any sums otherwise assessable against the same person. The step thus, criticised is but one of those leading to the ultimate result intended and commanded by the legislature, namely, that “taxes shall be apportioned and collected on the tax roll for such entry.” We are satisfied that any matters of mere form in the procedure can and should be adjusted to accomplish this result.

Again, it is urged that if the property is not in existence it cannot be within the jurisdiction of the assessors. This contention loses sight of the consideration that the whole subject of taxation is within the control of the legislature, subject only to the constitutional requirement of uniformity, and that branch of the government can confer jurisdiction to apportion and collect taxes when and where it deems best. Cross v. Milwaukee, 19 Wis. 509; North Carolina P. Co. v. Comm'rs of Almance, 82 N. C. 259, 268. In the latter case the assessment rested with the township board of trustees at the time the tax should have been levied, but the function had before the time of reassessment been transferred to other officers. The latter were nevertheless held justified in taking the steps necessary for such reassessment and collection authorized by statute.

It is suggested, that this construction, whereby assessors' may assess property not in existence or not within their district, is inconsistent with the general policj' of the statute (sec. 1055), which directs ordinary valuation for assessment of personal property to be upon actual view as far as practicable. But the section under consideration (sec. 1059) expressly excepts- reassessments from that requirement by providing that they shall be “ according to the assessor’s, best judgment.” This objection was urged and refuted in Cross v. Milwaukee, supra, where the property involved had been substantially changed in value by the burning of the-buildings thereon.

We reach the conclusion that the legislature did not intend to limit the effect of the amendment of 1899 to such personal property as remains unchanged in ownership and location, but to include any and all which by inadvertent omission escaped assessment, and that such intention is not incapable of enforcement under the circumstances presented in this case.

2. The second question, whether sec. 1059, as amended authorizes the reassessment of personal property omitted .from assessment prior to the amendment, is one of construction merely; for the power of the legislature to so authorize and direct has long since been placed beyond discussion. Flanders v. Merrimack, 48 Wis. 572, and cases there cited. A general rule of construction, sometimes said to apply to-all statutes, and often repeated in our own decisions, is to the effect that statutes are not to be construed as having a retrospective effect unless the intention of the legislature is clearly expressed that they shall so ojierate. Seamans v. Carter, 15 Wis. 548; Finney v. Ackerman, 21 Wis. 268; Vanderpool v. L. C. & M. R. Co. 44 Wis. 663; Jochem v. Dutcher, 104 Wis. 611. This rule is accompanied, however, by another equally well settled, stated by Chancellor Kent (1 Comm. 455), as-follows: “ This doctrine [prospective construction of statutes only] is not understood to apply to remedial statutes, which may be of a retrospective nature, provided that they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.” And by Cooley (Taxation [2d ed.], 293): “A remedial provision may well be presumed to have been intended to reach back for the purposes of justice. And in cases where a tax is levied to meet expenses previously incurred, or to pay the cost of something of which the persons to be taxed have already had the benefit, any presumption against an intent to give the law retroactive operation may be overcome by the apparent justice of such a construction.” In Klaus v. Green Bay, 34. Wis. 628, 636, this distinction was recognized and applied to an act providing that subcontractors for state, county, town, city, or village might maintain an action to compel the payment to them of the amount due the principal contractor, and the act was held to confer the right of action, although the indebtedness had been incurred before its passage.

We think it clear that the act here in question falls within the classification covered by the latter rule. It creates no new obligation, but is purely remedial. As we have already/•said, it is predicated upon the obligation of every individual to pay that proportion of the taxes warranted bjf his property existing at the time when assessment was omitted, and provides further remedial steps for the enforcement of such obligation and collection of the tax when it has failed of payunent through some irregularity or omission in the steps •otherwise prescribed. Considering, then, the construction of sec. 1059, it should be observed that both the form and purpose of the statute are addressed to regulating and directing the conduct of assessors, not to declai-ing rights or •obligations or commanding conduct of those who omit to pay their taxes. The reference to omitted assessments is merely by way of description of a situation in which the-assessor is commanded to act. Thus viewed, the statute is-clearly prospective. It seeks not to regulate or modify the effect of any acts already done, but to direct the doing of acts in the future, and, as to such acts, to “ take effect and be in force from and after its passage and publication.” The letter of the statute would have been disobeyed had an assessor in May, 1899, failed to enter upon his assessment roll any real or personal property omitted from assessment in any of the three next preceding years. Construing a very similar statute of Ohio, the supreme court of the United States said: “ As this act took effect upon its passage, it authorized the auditor, in any future corrections and adjustment of taxes, to extend his inquiries back for a period of four years. It did not require him to wait four years after its passage before he could give it full effect.” Sturges v. Carter, 114 U. S. 513, 517.

This court, construing cli. 222, Laws of 1885, providing' that when public lands once withdrawn from sale are reof-fered they shall first be offered at public sale, held the act, to apply to lands withdrawn before its passage. It was said,, JSTewman, J.: “ This construction does not, as counsel urges,, give the statute a retroactive operation. ... It operates only on a condition existing at the time of its passage or arising afterwards.” State ex rel. Sweet v. Cunningham, 88 Wis. 81, 87. The original of sec. 12105, authorizing reassessment in suits, was unhesitatingly applied in the case of taxes unlawfully assessed before the act, in Plumer v. Marathon. Co. 46 Wis. 171, and Flanders v. Merrimack, 48 Wis. 567. Other statutes affecting remedies have been held to apply immediately to the step directed, although the conditions upon which the law acted grew out of events or acts precedent to the legislation, where the language used was no clearer than that now under consideration. Parker v. Kane, 4 Wis. 1; Klaus v. Green Bay, 34 Wis. 628; Plum v. Fond du Lac, 51 Wis. 393; Reed v. Madison, 83 Wis. 171, 178; Relyea v. Tomahawk P. &. P. Co. 102 Wis. 306.

It is true there are cases, some of them cited above, which ignore the consideration that the legislation acts directly only on future acts, and deny to it even indirect retrospective effect upon precedent rights or conduct. We do not impugn the correctness of those decisions, applied as they were to legislation of a different class, not addressed merely to regulating or perfecting remedies for the enforcement of existing obligations. They do not conflict with the rule of such cases as those last cited, which fully justify the conclusion that sec. 1059, with its amendment including personal property, was intended to take immediate effect according to its terms, and to regulate the conduct of assessors thereafter, without regard to whether the omissions to assess occurred before or after 1899; from which conclusion it results that the action of the assessor attacked by appellant was lawful and proper, and that no error was committed by the board vof review in refusing to set it aside.

3. One other contention on part of appellant demands brief consideration. He insists now, on authority of Mitchell v. Plover, 53 Wis. 548, that the lumber belonging to plaintiff was not manufacturers’ stock, but merchants’goods, lie made no contention and offered no evidence before the board of review that the assessor’s designation of it on the roll as manufacturers’ stock was not in accord with the fact. Obviously, lumber may be merchandise when kept for sale, or may be manufacturers’ stock if held for the purpose of being manufactured into furniture, vehicles, or doors. In the absence of any evidence to the contrary, the board of review could not ignore the assessor’s report that it was the latter, and committed no error in refraining from changing the assessment roll in that respect.

The board of review does not appear to have acted either beyond its jurisdiction or contrary to law, and the circuit court properly quashed the writ of certiorari on the merits.

By the Oourt.— The order appealed from is affirmed.

MaRshall, J.

There is a trite expression in judicial literature which embodies the idea that compels me to dissent from the decision in this case, namely, It is not the province of the court to make the law but to expound and apply it. The judicial function and that of the lawmaking power are each independent of the other. Those whose duty it is to exercise the one cannot properly cross the boundary line that separates it from the other; though it is true that such line is sometimes so indistinct that judges, deeply imbued with the idea of what was the legislative purpose in making a law, especially if that purpose be strongly promotive of public interests and good citizenship, will sometimes cross it to accomplish such purposes, apparently overlooking those .safeguards to judicial footsteps that have been located along .the judicial pathway by the accumulated wisdom of ages. It seems to the writer that those guides were not strictly •observed in reaching the conclusion of the court in this •case, else a contrary decision would have been the result.

A brief reference to well-recognized rules for judicial construction, which form some of the guides above referred to, .and their application. to the statute upon which this case •turns, will sufficiently show the reasons why I cannot agree with the decision of the court.

We have first the rule, that words which are plain, and in their literal sense lead to no inconsistent or absurd consequence, must be presumed to have been used with their common and .ordinary meaning; and that such presumption must absolutely prevail. “ Absolxita sententia expositore non ■egetB That rule has been a guide for the courts of this country and England through a period covered by the great body of our judicial records, and is often found stated in the language of Vattel (Law of Nations, bk. 2, § 263) thus: ‘ It is-not allowable to interpret what' has no need of interpretation. . . . "When the meaning is evident, and leads to-no absurd conclusion, there can be no reason for refusing to admit the meaning which the words naturally present. To go elsewhere in search of conjectures, in order to restrict, or extend it, is but an attempt to elude it. Such a method, if once admitted, would be exceedingly dangerous, for there would be no law, however definite and precise in its language, which might not, by interpretation, be rendered useless.’ That recognizes that the consequence of adhering to a literal reading of words used in a legislative enactment may of itself call for judicial construction of the act, and justify in some cases a violation of the letter of the law in order to reach the real spirit of it and give effect to the legislative will. But that is limited by the principle that neither rules of-law nor of language can properly be violated to carry out a legislative idea, however clear it may be that the law was intended to convey such idea. That is to say, when interpretation of the words or construction of the language of an act is proper, a meaning cannot be properly ascribed thereto that is not within the reasonable meaning-thereof; for while by judicial construction we may get the right meaning out of words, it is not within the legitimate sphere of judicial construction to put meaning into them. State ex rel. Heidan v. Ryan, 99 Wis. 123. As is often said: “ Courts cannot go, bjr construction, beyond the reasonable meaning of language, whatever may be the consequences.” Lord Tenterden, in Rex v. Barham, 8 Barn. & C. 99, treating of the same subject, said: “It is better to abide by this consequence than to put upon it a construction not warranted by the words of the act, in order to give effect to-what we may suppose to have been the intention of the legislature.” Lord Campbell, recognizing' the same limitation upon judicial construction, in Coe v. Lawrence, 1 El. & Bl. 516, used the following language: “I cannot doubt what the legislature intended to do; but they have not carried it into effect. . . . It is better that we should adhere to the words they have used, than that we should strive to amend it.”

It follows that if the words of an act reasonably admit of but one meaning, that meaning must be adopted regardless of the wisdom of the act or whether it will effect the legislative purpose; and that the power to go beyond the ordinary meaning of words is limited by the rule, that if the language of an act be open to judicial construction, a meaning cannot properly be ascribed to it that is not within the reasonable scope of such language, whatever may be the consequences of adhering to that limitation. To go beyond that is to alter the Law and do what the legislature may have in-, tended but failed to do. The ultimate end of judicial construction is not to determine what the legislature meant, but what the language used by the legislature means.

In view of what has been said and the fact that my brethren obviously consider the statute (s.ec. 1059, Stats. 1898) open to judicial construction, we would expect to find that established legal principles were applied to it in order to determine what the language used therein means. But if such application were made, we are unable to discover that it proceeded further than to determine that the legislature evidently intended to provide that personal property, omitted from the tax roll one year, shall be assessed for such year thereafter if the omission be discovered within three years, regardless of any change in the title in the meantime or even of the existence of the property at the time-of remedying the omission. It is assumed, as we take it, that such situation justifies a construction that will effect the legislative idea, whether the meaning attached to the language under consideration is reasonably within its scope or not. No claim is made that the words, “ shall be entered once additionally for each previous year of such omission,” include within their reasonable meaning an entry not additional to an entry for the current year. But it is said we must hold that the legislature did not intend to limit the remedy for mistakes of assessors in omitting property from the assessment, to propert}7 still liable to assessment to the same person as at the time it was omitted, else the legislative purpose “ in large measure must fail.” That is, as we take it, the point under consideration is made to turn on a rule of construction which of itself does not justify attributing to words a meaning contrary to their literal sense,— a rule which, if followed regardless of its limitations, will often lead to an apparent failure to observe that the judicial office is “jus dicere,” not “jus dare? Lord Westbury, in Ex parte Vicar, etc. of St. Sepulchre’s, 33 Law J. Ch. 372, stating the construction of a law to effect abstract justice, and a presumed legislative purpose, disregarding the limitations to which we have referred, said: “The vice chancellor is of opinion that what he denominates the abstract justice of the case requires this interpretation. ... I cannot admit the principle, that in a matter of positive law, abstract justice requires or justifies any departure from established rules of interpretation. Those established rules no doubt admit of putting a secondary meaning upon words where the ordinary and primary signification would lead to some absurdity or impossibility. But where the conclusion is merely that there is a casus omissus, for which the legislature has not provided, to alter the ordinary rules of interpretation upon the principle of a duty due to abstract justice, is simply to legislate and not to interpret.”

The force of the foregoing will appear by a careful study of the words of the statute under consideration: “Personal property omitted from assessment in any of the three next previous years by mistake or inadvertence, . . . shall be entered once additionally for each previous year of such ■omission.” As we look at those words, the first question that the judicial interpreter should solve is, Are they in themselves, or when applied to the subject to which they refer, ambiguous? If not, as. we have seen, they must be taken in their literal sense. It would seem that the words are plain and do not admit of any other meaning than that, when property is assessed for any year, it shall also be assessed once additionally for each of the three preceding years that it was by mistake or inadvertence omitted from the assessment roll. I do not understand that the contrary is held by my brethren, except for some judicial power of the court to give to words a meaning which will effect a plain legislative purpose rather than that the purpose shall fail. But the court has. no such legitimate power, as we have seen. All must admit that it is impossible to do a thing “ once additionally ” till the thing has been originally ■done. That is too clear for serious discussion.

If we are right in the foregoing, then the law under consideration cannot be construed as the court has construed it, except by rejecting entirely the significant word “ additionally.” That is what has in fact been done. If there is any rule of construction that will justify such a course, the writer is not aware of it. Words obviously omitted by mistake, which prevent an act having a sensible effect, and words necessarily implied, may be supplied by judicial construction; but-when an act will admit of a reasonable construction that will give sensible effect to every part of it, the court cannot properly, by judicial construction, curia casusomissus, reject words merely because otherwise the scope of the law will be more limited in its operation than the legislature probably intended, and more than absolute justice requires.

In what has been said we have assumed that it was probably the legislative purpose to remedy mistakes in the omission of property from the assessment roll if discovered within three years from the commission of the mistake, regardless of a change in the ownership of the property in the meantime, or the consumption or destruction of the property itself. We are not willing, however, to admit that the position of the court on that point is correct. The use of the word “ additionally ” in the law, in my judgment, is an insurmountable barrier to reaching such conclusion. All that is said in the opinion as to the public interests requiring that every person shall bear his just proportion of the public burdens, meets with our hearty approval. What is here condemned is that which appears to be judicial legislation to effect the desired end.

I will not further continue the discussion. The grounds of dissent have, in the main, been stated. No good can come from going on merely to further fortify the position here taken by a more careful analysis of the reasons given by tho court for an affirmance of the judgment. It seems that the judgment should be reversed.

Bardeen, J. I concur in the foregoing.