#### Foster, Appellant, vs. Rowe, imp., Respondent.

*April 17*

May *8, 1906.*

*Taxation: Commission of equalization: Conclusiveness of proceedings: Jurisdiction: Discretion as to evidence: Constitutional law: Delegation of legislative power: Due process of law: Equal protection of the laws: Imposing nonjudicial powers on judge: Appointment of commission: Repeal of statute.*

1. Tire proceedings of commissioners of equalization appointed under sec. 1077a, Stats. 1898, if conducted in good faith, and within their jurisdiction, are final and conclusive; and a want of jurisdiction must he affirmatively shown.

2. A broad discretion is vested in such commissioners respecting the taking of testimony; and their refusal to hear evidence that property was omitted from the tax roll in a certain city does not render their determination void.

3. The power to equalize taxes is a quasi-judicial power, and is not legislative in the sense that it cannot be delegated by the legislature to a board.

4. The commission of equalization provided for in sec. 1077a, Stats. 1898, acts upon the different municipalities in the county, not upon the individual taxpayers; and the fact that no notice to taxpayers is required does not render the statute void as depriving any person of property “without due process of law;” nor does the statute deny to the taxpayer “the equal protection of the laws.”

5. Sec. 1077a, Stats. 1898, providing for appointment of commissioners of equalization by the circuit judge, is not unconstitutional on the ground that it imposes nonjudicial power upon such judge.

6. Where commissioners of equalization appointed under sec. 1077a, Stats. 1898, had fully performed their duties and made their determination before the repeal of that statute by ch. 474, Laws of 1905, such repeal did not affect'their determination.

Appeal from an order of the circuit court for Chippewa county: A. J. Viwje, Circuit Judge.

*Affirmed.*

This action was brought by a taxpayer of the village of Fairchild in Eau Claire county, on behalf of himself and other taxpayers, to restrain the clerk from carrying out upon the roll for 1901 two sums of money which he had been di*327rected. to levy upon the property of the village in pursuance of two certificates filed with the county clerk by the commissioners of equalization acting under secs. 1077a¡ and 10776, Stats'. 1898. • .

The material part of the complaint is to the effect that plaintiff is a resident, taxpayer, and owner of real estate subject to taxation in said village, and brings the action on behalf of himself and other taxpayers; that the county board in 1899 equalized and determined the aggregate valuations of the taxable property in the towns, villages, and cities of said county; that afterwards, on application of the city of Eau Claire under secs. 1077a and 10776, Stats. 1898, commissioners to review the equalization were appointed, and such commissioners on review deducted from the valuation of the cities of Eau Claire and Altoona certain sums and added the same to other municipalities; that-the county board in November, 1900, equalized the valuations of the county, and thereafter, on application of the city of Eau Claire, commissioners were appointed, who reviewed said valuations and deducted from the valuation of the cities of Eau Claire and Altoona and added to other municipalities certain sums; that, when the commissioners who equalized the valuations for 1899 and 1900 were hearing evidence, the representatives of certain towns in said county appeared before them and offered to show that there was over $1,000,000 worth of property in the city of Eau Claire on the 1st day of May of the year under investigation, which consisted of credits due to residents 'from banks in said, city, which had not been assessed, but entirely omitted from the assessment of that year, and which were not exempt from taxation; and that the commissioners who equalized for 1899 and 1900 refused to receive any evidence as to such property, and did not take into consideration in making their equalization any portion of said $1,000,000; that the same should have been listed for taxation in said city of"Eau Claire for said years 1899 and 1900; that the *328county board for each of said years, iu determining tbe valuations of tbe property of said city of Eau Claire, took into account said $1,000,000; that representatives of said town also offered to show that there was a large amount of money, accounts, and credits aside from said deposits due from solvent persons to residents of said city .of Eau Claire on May 1, 1899, and 1900, respectively, which had not been returned for taxation or assessed in said years, but which had been omitted from the assessment for each of said years, and which were not exempt from taxation; that the commissioners refused to receive evidence of such property, upon the ground that they had no authority to hear evidence upon or consider any property not appearing upon'the assessment roll; that said commissioners did not take into consideration said moneys, accounts, and credits, but excluded the same from consideration in arriving at the relative valuation of the real and personal property in the city of Eau Claire, and that there was in fact of such property over $500,000 aside from the deposits in the banks mentioned which was subject to taxation for each of said years; that writs of *certiorari*were issued to review the proceedings of the commissioners for the years 1899 and 1900, and on motions said writs were superseded and the suits dismissed; that an appeal was taken from the order to the supreme court *(State ex rel. Augusta v. Losby,*115 Wis. 57, 90 N. W. 188) ; that thereafter, and immediately upon the entry of said order dismissing said suits- and before relators therein could prepare their appeal papers, the county clerk of said county transmitted to the defendant, as clerk of said village, his certificate of the amount to be raised by said village as taxes and to be extended by said defendant as such town clerk against the property of the taxpayers of said town for the year 1900; that the aggregate amount of said tax so directed to be raised is $6,451.87, of which $1,234.47 is the sum growing out of the increase of the valuation of said town made by the commissioners who *329■equalized for 1899, and $405.05 and expenses is the sum growing out of the increase made in the valuation of said town by the commissioners who equalized for the year 1900; that said sums were directed to be collected of the taxpayers to satisfy the change made by the commissioners who equalized for said years, and that the determination and certificate of said commissioners for each of said years are null and void; that of the total tax directed to be levied $969.J2 is state tax, and said sums are not needed for use in carrying on .the business of the government of Wisconsin or the county of Eau Claire, but are directed to be levied to be used, and would be used, if paid, for the purpose of making an adjustment between said town and city of Eau Claire in accordance with the determination of said commissioners for said two years; that the town clerk will, unless restrained, insert in the'tax roll the illegal tax mentioned; that said illegal tax extended and carried out upon the tax roll will constitute clouds upon the titles to the lands of the plaintiff and other taxpayers, and the amounts will be levied upon their personal property.

The clerk made default, and *JRowe,*a taxpayer of the city of Eau Claire, was allowed to defend, and demurred upon the following grounds: (1) Because the court had no jurisdiction of the subject of the action; (2) because plaintiff had no legal capacity to sue, in that he cannot sue on behalf of the village of Eairchild or the taxpayers thereof; (3) defect of parties plaintiff, in that the village of Eairchild was not made a party plaintiff; (4) want of facts sufficient to constitute a cause of action. Erom an order sustaining the demurrer this appeal was taken.

Eor the appellant there were briefs by *W. U.*Fra/wley, attorney, and *H. B.*Walmsley, of counsel, and oral argument by *Mr. Walmsley.*

Eor the respondent there was a brief by *Wickham &*Farr, and oral argument by *Mr. Janies Wickham.*

*330KebwiN, J.

1. Passing tbe grounds of demurrer for want, of jurisdiction of tbe court, legal capacity to sue, and defect of parties, we proceed to consider tbe objection that tbe complaint does not state facts sufficient to constitute a cause of' action. This is tbe only ground of demurrer wbicb we find it necessary to consider, and, if the complaint fails to state facts-sufficient to constitute a cause of action, tbe order appealed from must be affirmed. We are clearly of tbe opinion that tbe proceedings of tbe board, if conducted in good faitb and within its jurisdiction, are final and conclusive, and tbe question to be considered is whether tbe allegations of tbe complaint show such a disregard of duty as to render its acts contrary to law and void. Tbe presumption is in favor of the regularity of tbe proceedings of tbe commissioners, and whoever attacks them must show affirmatively want of jurisdiction. *State ex rel. Burnham v. Cornwall, 91*Wis. 565, 73 N. W. 63.

Tbe duties imposed are statutory. Sec. *1017a*provides, in effect, for tbe appointment of three commissioners to review tbe determination of tbe county board respecting tbe valuations of real and personal property in tbe county to determine what sum upon tbe hundred dollars should be added to or deducted from tbe aggregate valuations of real or personal property, or both, as tbe case may be, as made by tbe county board in order to produce a just relation between the-valuations of real or personal property, or both, in tbe different cities, towns, and villages in tbe county; but that such* commissioners shall in no case increase tbe valuation throughout tbe county above tbe aggregate valuation made by tbe county board. The statute further provides for tbe giving-of notice of tbe application for tbe appointment of commissioners, and, upon proof of tbe service of notice and presentation of affidavit stating tbe facts, tbe judge shall appoint three discreet freeholders, not residents or owners of real estate in tbe county, who shall proceed to review and examine in the-*331manner provided, and within three months make their determination and file a certificate tinder their hands and seal in the office of the county clerk of the county, and that the valuation 'determined shall be final and conclusive. This section-provides, generally, with reference to the discharge of duties,, compensation, and execution of the trust reposed in them. Sec.,10776, Stats. 1898, provides that the commissioners shall appoint a convenient time and place in such county for hearing any evidence or arguments upon the valuations under review to be offered by any taxpayer or officer of any city, village, or town, and shall attend at the time and place named and hear any evidence or arguments offered on behalf of taxpayers, and shall sit at least five days; and, further, that the-commissioners “may adjourn from day to day and from time-to time, call for and examine any assessment or taxpayers or records in the county, subpoena and swear witnesses, and,- in general, conduct the hearing after the usual manner of a judicial hearing; but they shall hear evidence and arguments and consider the facts as to the valuation of the property of specific taxpayers only so far as in their judgment such valuation bears on the just aggregate.-valuation of any city, village, or town.” '

The principal charge made in the complaint, and the only-one which it becomes necessary to consider, is that the representatives of different towns in the county appeared before the commissioners when sitting to take testimony and hear arguments and offered to prove that personal property to the-amount of about $1,500,000 in the city of Eau Claire, one of the municipalities in said county, had been omitted from the-tax roll in the years 1899 and 1900, and that the village of Eairchild, the complaining municipality, was one of the municipalities that made such offer, and that the commissioners refused to hear evidence as to this property on the ground that it was not on the assessment rolls, and reached their conclusion by ignoring and failing to take into account the prop*332■erty so omitted. The question, therefore, arises whether such acts on the part of the commissioners rendered their proceedings void, or whether, in the refusal to hear such evidence, they were acting within their jurisdiction.

It is very plain, from the provisions of the statute above--quoted, that the commissioners are vested with a broad discretion respecting the taking of testimony. And this is necessarily so from the nature of the proceeding and the duties imposed. Their duty is not to ascertain the property omitted from the tax roll, nor to take testimony for the purpose of determining that question, hut to call for and examine assessments or taxpayers or records in the county, and consider the facts as to the valuation of the property of specific taxpayers -only so far as-in their judgment such valuation bears on the just aggregate valuation of any city, village, or town. The -commissioners were obliged to sit five days only to take testimony and hear arguments, and to hold that they must take all evidence offered which they did not regard pertinent might in any case defeat the purpose of the statute. It is very plain, from the express language of the statute, that they are required to take only the evidence of such taxpayers as in their judgment may tend reasonably to aid them in the performance of their duties. The extent of their duties, the amount of property to be examined, and the limited time for taking testimony and hearing arguments, in connection with the language of the statute, clearly show that it was the intention of the legislature that a broad discretion should be vested in the commissioners respecting the taking of testimony and the performance of their duties. The statute provides that the commissioners shall conduct the hearing after the usual manner of a judicial hearing. They are presumed to know from the examination of property throughout the county, and the valuations placed thereon by the assessors and hoard of equalization, what evidence will best aid them in determining the basis upon which property was assessed in the different *333municipalities in tbe county, to tbe end tbat tbey may properly equalize tbe valuations between tbe different municipalities. Tbe fact tbat certain property was omitted from tbe assessment rolls in a municipality, would not necessarily aid' them in tbe performance of their duty. To attempt to discover, all property omitted from tbe assessment rolls in tbe different municipalities would manifestly be a hopeless task, and one which it is very plain tbe legislature never intended to impose upon them. Tbe information accessible to them by examination of property throughout tbe county, and tbe means-provided by tbe statutes (secs. 1007-, .1010, 1050, 1066), would be far more effectual in affording aid to tbe commissioners than evidence of specific items of property omitted from tbe assessment rolls, even if tbey were obliged to consider such evidence. Tbe duty of tbe commissioners was simply to review tbe action of tbe county board and to examine- and determine what sum upon tbe hundred dollars should be added to or deducted from tbe aggregate valuation as made-by tbe county board, and tbe county boárd made its equalization upon tbe assessments made throughout the county. It bad nothing to do with tbe property omitted from tbe tax roll. We think, therefore, tbe refusal to bear evidence tbat property was omitted from tbe tax roll in tbe city of Eau Claire was not error and is no ground for attack upon tbe proceedings of tbe commissioners.

2. Tbe constitutionality of tbe law is challenged by appellant upon several grounds, while on tbe part of tbe respondent it is asserted tbat tbe law has been declared constitutional' by this court in several cases. *State ex rel. Ellis v. Thorne,*112 Wis. 81, 87 N. W. 797; *State ex rel. Augusta v. Losby,*115 Wis. *57,*90 N. W. 188; *State ex rel. Burnham, v. Cornwall, 97*Wis. 565, *78*N. W. 63; *Outagamie Co. v. Greenville, 77*Wis. 165, 45 N. W. 1090; *State ex rel. Manitowoc v. County Clerk,*59 Wis. 15, 16 N. W. 617; *State ex rel. Brown Co. v. Myers,*52 Wis. 628, 9 N. W. *777.*While it is *334true this court bas in some cases where the law has been before it treated these statutes as valid, it has, it is believed, never passed directly upon some, at least, of the questions presented by the appellant. Appellant contends that the law in question is unconstitutional because it assumes to delegate to the commissioners a function purely legislative, and- the legislative power necessary to execute it, and relies upon *West v.*Ballard, 32 Wis. 168; *Teegarden v.*Racine, 56 Wis. 545, 14 N. W. 614; and *In re Incorporation of North*Milwaukee, 93 Wis. 616, 67 N. W. 1033. In *West v.*Ballard, supra, this court held that the action of the county board in making the equalization was in the nature of a legislative act, and therefore a court could not set aside its acts even for fraud. So, if that case were held authority here, and the commissioners oe-■eupied the position of a legislative body, clearly, upon the allegations of the complaint, the demurrer should have been ■sustained, assuming that the legislature had power to grant such authority to the commissioners. There is nothing in *West v. Ballard*indicating that the legislature cannot confer power upon the commissioners to equalize taxes between the municipalities of a county. *Teegarden v.*Racine, *supra,*does not seem to touch the question. In the *North Milwaukee ■Case*it was held that the creation of municipal corporations is the exercise of legislative power and cannot be delegated except as authorized by the constitution, and that the circuit ■court cannot determine whether it is for the best interests of the people of a locality that they be incorporated and fix the boundaries of the municipality. In the latter case it was held that the circuit court performed a legislative function in making the order incorporating the village, and therefore the •statute authorizing such act was unconstitutional. It will be seen, however, that the case has no application to the question before us. The power to equalize taxes is not legislative, in the sense that it cannot be delegated by the legislature to a board. On the contrary, the authority of the legislature to *335create such, boards, and authorize courts to appoint them, is well established. This doctrine is recognized and asserted in the *North Milwaukee Case.*The power delegated to the commissioners is not a legislative power in the constitutional sense, but quasi-judicial. *Brown v. Oneida*Co. 103 Wis. 149, 79 N. W. 216; *State ex rel. Ellis v.*Thorne, 112 Wis. 81, 87 N. W. 797; 1 Cooley, Taxation, 786, and case's cited. True, there is conflict in the decisions of courts upon this subject, but the weight of authority and better reason appear to support the doctrine that^the power delegated to such boards to equalize taxes is in its nature quasi-judicial and not legislative. The commissioners make an examination of the property throughout the county, subpoena and swear witnesses, take testimony, and in general conduct the hearing after the usual manner of a judicial hearing.

3. It is insisted that the act is unconstitutional because it contravenes sec. 1, amendm. XIV, Constitution of the United States: “Nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The contention is that no sufficient notice was given to the taxpayers. This contention cannot be sustained. The board acts upon the different municipalities in the county, not upon the individual taxpayers; hence no notice to taxpayers is necessary. *Spalding v. Hill,*86 Ky. 656, 7 S. W. 27; 1 Cooley, Taxation (3d ed.) 786.; *State Railroad Tax*Cases, 92 U. S. 575, 609. Some of the cases cited by counsel on this'point are cases of special assessments against property owners for local improvements, where the courts hold that such assessments can be sustained only upon the theory that lands upon which they are laid are specially benefited thereby, while others are cases not relating to the taxing pqwer at all, and, so far as we can discover, have no bearing upon the question here.

4. It is also claimed that the statute denies to the taxpayer *336tiie “equal protection of the laws/’ and thus violates the federal constitution. We think it very clear that this position is untenable. *Bittenhaus v. Johnston,*92 Wis. 588, 66 N. W. 805; *Hayes v. Missouri,*120 U. S. *68, 71, 1*Sup. Ct. 350.

5. It is further contended that the act is unconstitutional because it imposes nonjudicial powers upon the circuit judge. We think little need be said upon this sub ject. The appointing power of courts was recognized and approved and held not to be the exercise of legislative power in *In re*Incorporation, *of North Milwaukee,*93 Wis. 616, *61*N. W. 1033, and this doctrine seems to be well supported by authority. *People ex rel. Rhodes v. Fleming,*10 Colo. 553, 16 Pac. 298; 17 Am. & Eng. Ency. of Law (2d ed.) 717; 6 Am. & Eng. Ency. of Law (2d ed.) 1060; *Russell v. Cooley,*69 Ga. 215; *Walker v. Cincinnati,*21 Ohio St. 14; *Ross v. Board of Freeholders,*69 N. J. Law, 291, 55 Atl. 310. The power of circuit courts to appoint commissioners under the act in question has been heretofore recognized in this court, though perhaps not directly passed upon, *State ex rel. Brown Co. v. Myers,*52 Wis. 628, 9 N. W. 777; *Outagamie Co. v. Greenville,*77 Wis. 165, 45 N. W. 1090; *State ex rel. Manitowoc v. County Clerk,*59 Wis. 15, 16 N. W. 617; *State ex rel. Bilis v. Thorne,*112 Wis. 81, 87 N. W. 797.

6. It is further insisted that there is “no power to tax for this purpose,” that the statute is void because unworkable, and that part of the tax has been paid. We think what has been already said fully answers this contention, and that it is unnecessary to prolong discussion under this contention.

7. It is also insisted that the repeal of the law extinguished the right to further proceed in the matter, and authorities are cited to the effect that, where the right is created by statute, the right of action as well as the action itself must be saved by the repealing act. The statutes in question were repealed by ch. 474, Laws of 1905, but a saving clause was inserted to the effect that any pending proceeding should proceed to final *337determination tbe same as if tbe act bad not been passed. Tbó repeal of tbe statute, however, cannot affect tbe present proceeding, because tbe commissioners bad fully performed tbeir duties and made tbeir determination before tbe repeal'. Tbe functions of tbe commissioners were performed and tbeir duties ended before tbe repeal of tbe law.

We tbink tbe court below was right in sustaining tbe demurrer.

*By the Court.*— Order affirmed.