#### The State ex rel. N. C. Foster Lumber Company, Appellant, vs. Williams, Village Clerk, Respondent.

*September 29*

October *18, 1904.*

Certiorari *to nonjudicial bodies: When evidence reviewed: Taxation:Valuation by assessor: Board of review: Weighing evidence:Presumptions: Courts: Appeal and error: Supervisor of assessments: Witnesses: Competency.*

1. The scope of the writ of *certiorari*to a nonjudicial body is not: as broad as a writ of error as to permitting'a review of evidence, and if there is reasonable ground for belief that the-body’s conclusion is the result of honest judgment it cannotr be disturbed.

2. A nonjudicial body, up to the dividing line between error in-. the exercise of discretion and judicial error, has ample-opportunity to make erroneous decisions, from which the-aggrieved party has no opportunity for • relief. If a remedy should be afforded, it is for the legislature to provide, and not-for the courts by changing the scope of the common-law writ of *certiorari.*

3. On *certiorari*to a board of review, in the absence of evidence-to impeach it, the assessor’s valuation is presumed to be correct, .and, upon the evidence produced to support or overcome-that presumption^ no mistake or error of the board, honestly made in deciding thereon according to their, judgment, warrants judicial review of the decision.

*624. In such, case, the court must look into the evidence far enough to see whether in any reasonable view thereof, in the light of correct rules of law, it furnished a substantial basis for the board’s action, and, having discovered that, the court has exercised its legitimate function in- respect thereto.

•5. Where the trial court on *certiorari*to a board of review has passed adversely to the contention of relator, on appeal the want of legitimate basis in the evidence for the board’s decision must appear very clearly and satisfactorily, although the decision may seem clearly against the great preponderance of the evidence.

■•6. In proceedings before a board of review to reduce the assessor’s assessment, the board is not bound to accept as true the evidence upon one side or that of the 'other, but may, in the exercise of its judgment, disregard the evidence on both sides, and fix a valuation between the two extremes.

".7. In proceedings before a board of review to reduce the assessor’s valuations, one item was a sawmill. The evidence of the owner bore mainly on what the sawmill property was worth to disorganize it and dispose of its parts. The testimony chiefly relied upon by the board to support the assessor’s valuation was what the property, as an entirety, and as a going concern, would ordinarily sell for at private sale, assuming that a buyer, with the same opportunity for the use of the mill as the present ojvner, was at hand and had the means to buy it. *Held,*that the evidence to support the assessor’s valuation was much nearer the statutory basis prescribed by sec. 1052, Stats. 1898, i. e., the full value that could ordinarily be obtained for the property at private sale.

:8. In proceedings before a board of review to reduce the assessor’s valuation, one item was a stock of lumber. The result testified to by a witness produced by the relator and witnesses produced by the assessor varied several million feet, but neither of the results was more than an estimate. *Held,*that while the method of estimation adopted by the relator’s witness appeared better calculated to reach a correct result, it could not be said that the method adopted by the assessor was so unlikely to reach an approximately correct result that the evidence thereof was not entitled to consideration, and hence the board was not without warrant in reaching its conclusion.

•9. In proceedings before a board of review to reduce the assessor’s valuation, one.item was the value ofrrelator’s sawlogs. Relator estimated the amount thereof on May 1, by taking from the log stock secured for the season, the amount of lumber manufactured therefrom, on an estimated cut of the mill *63per day. Relator did not furnish any evidence of the lumber actually cut out of the logs, nor any evidence of how the scale of the lumber compared with the log scale. The assessor made his valuation on an estimate from inspection and statements of the relator’s agents. *Held,*that the hoard were not entirely without warrant in reaching the conclusion which they did, and that their valuation should stand.

10. The supervisor of assessments is not authorized to make assessments, or substitute his judgment for that of the assessor.

11. A supervisor of assessments is a competent witness to give testimony before a board of review, and the fact that in giving his testimony he was in the attitude of supporting his own judgment, recorded in the assessment roll, goes to the weight of his testimony, but not its competency.

Appeal from a judgment of tbe circuit court for Eau 'Claire county: James O’Neill, Circuit Judge.

*Affirmed.*

*Certiorari*to tbe board of review of tbe village of Eair-child to obtain an examination of its'proceedings respecting tbe assessment for taxation of tbe property of tbe *N. C. Foster Lumber Co.*

Tbe facts involved in tbe litigation, so far as necessary to an understanding of tbe questions examined and decided, are sufficiently referred to in tbe opinion.

Eor tbe appellant there was a brief by *Bundy &*Wilcox, and oral argument by *C. T. Bundy.*

Eor tbe respondent there was a brief by *Wickham & Farr,*and oral argument by *James Wickham.*

■' Maeshall, J.

This appeal involves tbe question of wbetber tbe board of review of tbe village of Eairchild committed jurisdictional error in valuing tbe relator’s property for taxation. We have a long record before us. There are some 300 printed pages of evidence upon which tbe board made tbe decision complained of. It is claimed that such decision on many points is so manifestly wrong as to be juris-dictionally defective. We are urged to examine tbe evidence in detail, to review and weigh it to determine wbetber it preponderates in favor of or against tbe board’s conclusion. We *64Rare responded thereto as fully as the nature of the case will, permit. We have not gone as far as requested because settled legal principles barred the way.

Before' giving attention in detail to the valuations complained of, it seems best to consider the proposition advanced by counsel as to the rule to be observed. It is contended that, the scope of the writ of *certiorari*to a nonjudicial body, as in this case, is as broad as a writ of error, as to permitting a review of evidence. While the learned counsel- refer to many of our recent decisions to sustain that, they are not understood here to have that effect. In a number of instances the question now presented was so thoroughly discussed that it does not seem that new li^ht.can be shed on the subject. It has been said over and over again in terms or in effect, in the circumstances of this case, that the .board must decide on evidence and according thereto; that a decision one way where the evidence is all the other way, or to increase the value of' property without evidence, or a decision so manifestly against what is clearly established by evidence as not to be, in any reasonable view, attributable to error of judgment, is jurisdictional error; and that where the board applies its judgment to the evidence and reaches a conclusion which is against the great weight of evidence, “if there be any reasonable ground for belief it is the result of honest judgment, it cannot be disturbed.”

Boards of review up to the dividing line between what is called jurisdictional error, error in the exercise of discretion,, and judicial error’, have ample opportunity to make erroneous decisions from which the aggrieved party has no opportunity for relief. If a remedy should be afforded in such cases the only source from which it can legitimately spring is legislative power. The court cannot give it by changing the scope of the common-law writ of *certiorari,*and has never-attempted to. That was very distinctly declared in *State ex rel. Augusta v. Losby,*115 Wis. 57, 90 N. W. 188. There,. *65after citing numerous adjudications of this court, it was said that:

> “If a board in reaching a determination is required to act upon evidence and it acts without evidence, or any evidence warranting the result in any reasonable view thereof, or if it is required to receive evidence and refuses to do so, it commits a clear violation of law and jurisdictional error, and its final determination may be challenged by a writ of *certiorari,*and held void upon that ground if the error appears of record.”

In *State ex rel. Vilas v. Wharton,*117 Wis. 558, 94 N. W. 359, it is said in effect that, at the outset, in dealing with an assessor’s valuation before a board of review “it is presumed, in the absence of evidence to impeach it, to be correct.” There must be some substantial basis in the evidence to overcome that presumption, or such valuation cannot be disturbed. Upon evidence being produced in that regard to be considered with evidence supporting such presumption, and a decision thereon being made by the board according to their judgment, “no mistake or error in so doing made honestly could warrant judicial review of the decisions.” The cases to the same-effect in this court are numerous. *Shove v. Manitowoc, 57*Wis. 5, 14 N. W. 829; *State ex rel. Smith v. Gaylord,*73 Wis. 306, 4 N. W. 518; *State ex rel. Heller v. Lawler,*103 Wis. 460, 79 N. W. 777; *State ex rel. Giroux v. Lien,*108 Wis. 316, 84 N. W. 422; *State ex rel. Ellis v. Thorne,*112 Wis. 81, 87 N. W. 797.

So, obviously, it is useless to make that careful study of’ the evidence which counsel urges us to make, for the purpose of determining whether it preponderates in favor of or against the decision of the board of review upon any particular point. We must look into the evidence far enough to see whether in any reasonable view thereof, in the light of correct rules of law, it furnishes a substantial basis for the board’s action. Having discovered that, as to any matter, we shall have exercised our legitimate function in respect thereto. *66Manifestly since tbe trial court passed adversely on tbe contentions of counsel, tbe want of a legitimate basis in tbe evidence for tbe board’s decision must appear here very clearly and satisfactorily or it should stand, tbougb it may seem clearly against tbe great preponderance of tbe evidence.

Tbe earnest appeal of counsel for appellant for tbis court to broaden out tbe use of tbe common-law writ of certiorari, if it bas not done so, to meet new conditions, said to have developed from tbe administration of new legislative schemes for discovering property subject to taxation, and greater pressure upon public officers than formerly in tbat regard, causing tbem to suppose themselves adversaries of property owners, instead of appreciating tbat their true function is to protect such owners as well as tbe public, and when acting as a board of review, to exercise in spirit as well as in form tbe judicial function, cannot, legitimately, be responded to, even if it be true tbat tbe necessity for a new remedy or the broadening out of an old one is as great as tbe learned counsel suggest. All tbe court can do is to afford to litigants tbe use of .-such remedies as tbe law gives. It may be tbat they are somewhat too limited, as regards dealing with mere legislative ■creations exercising quasirjudicial authority, such as boards •of review. Tbougb it may be tbat they would be found to be •quite sufficient as to such boards, if property owners would more generally consider, as they should, tbat it is tbe duty of public officers, having to do with tbe assessment of property for taxation, to find and assess all property,-made assessable by law, and mstead of obstructing aid tbem in tbe performance of their important and often difficult duties, by at least making full and‘fair disclosures of their property, as tbe letter and spirit of tbe law requires. It is probably true tbat boards of review often do not appreciate tbat tbe law requires on their part tbe exercise of judicial functions to tbe end tbat tbe interests of tbe property owners as well as those of tbe public, may be properly guarded, and tbat they assume an air *67of suspicion and hostility toward such owners. It is quite as likely, however, that such attitude is induced by an air of apparent hostility on the part of such owners. But it is by no means improbable that the present legislative plan would be ample to vindicate the rights of all, with reasonable certainty and satisfaction, if the boards of review would so administer it, and property owners would so submit thereto as to give full effect to the same, instead of violating it by assuming an attitude of hostility, each toward the other. However it might be, as before indicated, this court cannot extend the ancient scope of the common-law writ of *certiorari*to remedy the difficulties complained of in this case and similar difficulties said to exist. If, as counsel argue, “it is useless to review the evidence, if after doing so, the court is powerless to grant relief against a decision which is contrary to the clear preponderance of the evidence,” then the practice of all the courts in the land in the use of the writ of *certiorari*and the writ of *habeas corpus*and in the treatment of findings of fact by juries is all wrong. As before indicated, any reformation in that regard, if the exigencies of the present condition require one, must come from the lawmaking power, not from those charged with applying the law as they find it.

Several instances are cited to our attention where the assessor’s valuation was corroborated by evidence, while there was evidence on the part of the relator establishing, if true, a much lower one, and the board did not adopt either, but decided upon a valuation between the two. The idea of counsel is, as we understand it, that the board was bound under such circumstances to accept as true, the evidence upon one side or that upon the other, and to do neither by fixing a value between two extremes was not an exercise of judgment, but an arbitrary conclusion disregarding the evidence on both sides. If that be correct then most of the decisions upon matters of fact by boards and juries and judges, especially where the decisions are necessarily based on opinion evidence, are arbitrary. *68Counsel’s proposition is wrong, — manifestly so. True, when tbe nature of a controversy is such that the truth is easily determinable to a reasonable certainty by mathematical demonstration, and the body called upon to decide proceeds otherwise to an erroneous result, there is no room for saying that such result was reached by the exercise of judgment. An instance of that is found in *New Home S. M. Co. v. Simon,*107 Wis. 368-379, 83 N. W. 649. But on questions of damages, necessarily determinable on conflicting opinion evidence, the universal practice is to determine the truth of the matter by the exercise of judgment within the range thereof.

Serious complaint is made of the action of the board in deciding upon the assessable value of the relator’s sawmill property. It is said that the evidence on relator’s side was consistent with the statutory basis for valuing the property, while that in support of the assessor’s valuation was on an illegitimate basis. True, as counsel claims, in such circumstances there is no conflict and the evidence on the side supporting the correct theory should be regarded as the sole evidence to base a decision on. *Batavian Bank v. North,*114 Wis. 637, 90 N. W. 1016. But we are unable to discover that the situation which counsel suggests existed. The evidence on the relator’s part bore mainly on what the sawmill property was worth to disorganize it and dispose of the parts. That on the' other side bore mainly on what the property was worth as an entirety and in its going condition. The relator and his witness testified that there was but little timber tributary to the mill; that it would probably not run for more than a year, and that the machinery would not sell for more than from $6,000 to $8,000. One witness testified that he would make no difference, in valuing the property, whether there was or was not further use for the mill in its then location, showing clearly that his valuation was fixed solely in contemplation of what could be obtained for the machinery by disorganizing the plant. That was not a fair way to determine the value of the *69property. It was very far from tbe statutory basis. It would not, if adopted by tbe board, bave resulted in valuing tbe mill plant at all. Tbe proper way was to consider tbe plant as an entirety, tbe mill, tbe land upon wbicb it was located, tbe planing mill, tbe lumber yard,- tbe means of reaching tbe plant witb logs and moving tbe lumber therefrom and all the accessories and things for and in use in and about tbe property and belonging thereto, or affecting its value, including of course tbe facilities for obtaining logs to beep tbe mill in operation. Tbe ultimate standard of value was “the full value that could ordinarily be obtained for tbe property at private sale.” In reaching that necessarily one had to consider that the property derived its value largely from its character as a combination fitted for a manufacturing industry, its location, tbe opportunity to continue such industry, tbe advantage of doing so and many other circumstances. Tbe statute, sec. 1052, Stats. 1898, so provides. Tbe idea that a sawmill property, costing $29,000 for tbe erection of tbe mill itself, witb its lumber yard, planing mill and all that goes to make up a complete plant in a going condition, witb tbe certainty of there being use for it for a year at least, possibly longer, should be valued on tbe basis of what tbe machinery would sell for, is certainly not consistent witb tbe statutes. "What could ordinarily be obtained for tbe plant under all tbe circumstances, that was tbe question, not what could be obtained for tbe material composing it. Tbe evidence on tbe part of tbe relator did not present any definite basis in that regard. Counsel says that tbe evidence to support tbe assessor’s valuation was on an entirely wrong theory. In our view it was much nearer tbe legitimate basis than that on tbe part of tbe relator. Tbe witness chiefly relied upon by tbe board, when pressed to state what standard be adopted in giving bis valuation, said it was “what tbe property would ordinarily sell for at private sale, assuming that a buyer, witb tbe same opportunity for tbe use of that mill as tbe present owner, was at *70band and bad the means to buy it.” The assumption in that hypothesis, that property valuable to one would be of substantially the same value to another, under the same circumstances, and that where one controls, for the purposes of sale, both the property and the circumstances affecting its value so that he can sell the former with the advantage of the latter, can ordinarily obtain at private sale the value, having reference to such circumstances, and that where there are sellers of property there are ordinarily customers, is by no means unreasonable. The evidence in support of the valuation placed ,on the property by the assessor was much more helpful than the evidence produced by the relator. We shall not discuss the evidence on either side in detail. Since the contention of counsel that the evidence on the part of the relator established the value of the property on a correct basis, and that the opposing evidence was on an entirely wrong basis, must be disapproved ; and the contention that we can legitimately overturn the decision of the board upon coming to the conclusion that the evidence merely preponderates against it must be disapproved, there is nothing left that need be said. Assuming such two propositions to be wrong, it would doubtless be conceded that there is some legitimate basis to be found in the evidence for the conclusion which the board of review reached.

Particular complaint is made of the decision of the board as to the valuation of the lumber stock which the relator had on hand May 1, 1903. In support of the assessor’s valuation evidence was given by witnesses who counted the lumber in a few of the full piles and determined the average amount in such a pile, and applied that standard to the number of like piles which, in their judgment, all the lumber in yard would make, taking a general view of and counting up the broken piles to enable them to make an estimate in that regard. The relator gave evidence by a witness who claimed to have estimated the lumber by treating every pile in the same manner the other witnesses did the few in order *71to obtain a basis as aforesaid, finding by that method 7,211,270 feet. The amount found by tbe other witnesses-was 10,4-93,600 feet. Neither of the results could be called more than an estimate. True the method adopted by the relator’s witness was better calculated to reach a correct result than the other, but it was only an estimate. If the result by one method had not been much different from that by the other it is quite likely that the board would have reached a different conclusion than it did. We cannot decide that the one adopted by the assessor and his assistant was so unlikely to reach an approximately correct result that the evidence thereof was not entitled to consideration at all. The difference between the two estimates was so large that the board may have concluded that it was not reasonably attributable to a faulty method by the assessor but happened through mistake, either by the witness upon one side or witnesses on the other.

Another of the most important decisions complained of by the relator is one in respect to the value of his sawlogs. He estimated the amount thereof on May 1, 1903, by taking from the log stock secured for the season, being 8,187,770 feet, the amount of lumber manufactured therefrom, on an estimated cut of the mill from such logs of 50,000 feet per day for the time the mill was operated prior to May 1, 1903, making 5,300,000 feet, leaving a balance of logs subject to assessment of 2,887,770 feet. He said the entire cut of the mill was from 70,000 to 90,000 feet per day, and that he estimated the logs in question furnished 50,000 thereof. It will be seen that such evidence did not furnish a very definite basis for a decision. It did not furnish a much more satisfactory basis, if any, than the evidence produced in support of the assessor’s valuation of an estimate made by taking a general view of the logs. Some criticism is made of such evidence. Without referring to it in detail, the general effect thereof, in our judgment, is that the estimate *72made by tbe assessor was on sucb a view as tbe one suggested. Tbe relator did not furnisb tbe board any evidence of the amount of lumber actually cut out of tbe logs, nor any evidence of bow tbe scale of tbe lumber compared with tbe log scale. That it ordinarily does not compare very accurately is notorious among people at all familiar witb sucb matters. A twenty per cent, overrun in lumber from tbe log scale made by Scribner’s rule, wbicb may bave been tbe case, would explain tbe difference between tbe assessor’s and tbe relator’s estimate, if tbe amount of lumber cut out of tbe log stock was as tbe relator testified. Enough has been said on tbe subject to indicate clearly that tbe board was not entirely without warrant in reaching tbe conclusion wbicb it did.

It does not seem necessary to further review in detail tbe conclusions reached by tbe board of review, which tbe relator complains of. Tbe evidence as to each has been sufficiently examined to enable tbe court to see that in all instances where tbe board made a decision in respect to any matter complained of, it bad some legitimate ground therefor. We have not overlooked counsel’s complaint that *the*supervisor of assessment was really tbe assessor, and was permitted to furnish evidence before tbe board of review to sustain his work. True, sucb supervisor bad no business to make tbe assessment of tbe relator’s property, or any other property. When be took tbe place of tbe assessor and substituted bis judgment for that of tbe proper officer be went outside of bis legitimate sphere. Tbe law contemplates now, tbe same as it did before there was any supervisor of assessment, that tbe assessment of property for taxation shall be made by tbe assessor. However, tbe supervisor was a competent witness to give testimony before tbe board of review. The fact that in giving sucb evidence be was in tbe attitude of supporting bis own judgment, recorded on tbe assessment roll, went to its weight, but not its competency.

*By the Oourt.*— Tbe judgment is affirmed.