#### Tainter vs. Lucas, County Treasurer, and others.

*Iryjunction to restrain sale for taxes, dissolution of. Pleadings. Presumption of regularity.*

In order to justify the dissolution of an injunction upon complaint and and answer, where the facts constituting a cause for such injunction are stated positively in the complaint, the denial in the answer must he of the'same positive character as the averment.

*3762. An averment in the complaint that a majority of the members of the town “ hoard of review ” acted fraudulently and corruptly in affixing an excessive valuation upon plaintiff’s property, however positive in form, can only he, in fact, an averment *upon information and belief.*

3. Where, therefore, the action to restrain the collection of the tax hy a sale of the land is against officers not charged with the fraud, their answer upon information and belief, denying the fraud, is sufficient to require a dissolution of the injunction, if it is founded merely on such averment of fraud.

4. If the “ hoard of review,” on plaintiff’s appeal from the assessor’s valuation, fixed the valuation of plaintiff’s land above its real value *arbitrarily,*and against all the evidence before it, that would he good ground for an injunction to restrain the sale of the land for the tax.

5. But a complaint which merely states what the plaintiff testified before the hoard as to the value of the land, and that the hoard refused to reduce the valuation in accordance with his testimony, without stating that this was the only evidence presented on the subject, does not show that the hoard acted in disregard of all the evidence before it, and will not sustain the injunction.

6. *It seems*that in charging the members of a “ hoard of review ” with acting corruptly and fraudulently in valuing property, facts showing the fraud should he stated; and an important, if not essential, fact to make out the fraud is, that they acted arbitrarily and against the evidence.

7. All reasonable presumptions must he made in favor of the regularity and validity of the action of public officers and tribunals; and it will be presumed, until the contrary is shown, that there was sufficient evidence before the “board of review” to justify its valuation of plaintiff’s property.

APPEAL from tbe Circuit Court for *Dunn*County.

This action was brought against tbe county treasurer of tbe county of Dunn, tbe board of supervisors of that county, and tbe town of Menomonie, to restrain tbe sale of tbe plaintiff’s lands for taxes assessed tbereon in tbe town of Menomonie for tbe year 1870, and to have tbe assessment and proceedings to collect declared void and set aside, on tbe ground of fraudulent discrimination against tbe plaintiff, and over valuation of bis property by tbe assessor and tbe majority of tbe board of review.

Upon tbe complaint, setting forth this cause of action, a pre*377liminary injunction was issued in May, 1871. The defendants answered, denying the equities of the complaint, and moved, at the September term following, “ upon the papers, records and proceedings on file and recorded,” for a dissolution or modification of the injunction. This motion was denied, and the defendants appealed.

The pleadings, so far as material to a full understanding of the points decided, are stated in the opinion of the court.

*Finches, Lynde & Miller*and *Bundy & Macauley,*for appellants :

1. The allegations of the complaint are insufficient to establish any fraudulent or corrupt, conduct in the board of review. It does not allege facts upon which to predicate the charge of fraud and corruption, nor in terms profess to give all the evidence which was before the board of review. The presumption is in favor of the regularity and validity of the proceedings of that board. The court cannot adjudge the members of it guilty of malfeasance in the discharge of their duty, without a knowledge of all the facts which were before it as to the valuation of the land. 2. The answer denies the alleged fraudulent and corrupt conduct of the assessor and members of the board. Under the circumstances, this answer ought to be taken to be true; and, upon it, the injunction ought to have been dissolved. *Warden v. Sup’rs of Fond du Lac Go.,*14 Wis., 618; 4 Johns. Ch., 26; 2 Sandf., 675; 2 Code Rep., 110; 5 Abb. Pr. R, 70-276; 18 How. Pr. R, 186 ; 22 id., 426; 21 id., 404; 13 Abb. Pr. R, 298. 3. The action of the board was judicial in its character, and final. They did examine and review the valuation of the plaintiff’s real estate. This court cannot review their action in a collateral proceeding; at least, not without having before it all the facts which were before the board. *Drucher v. Solomon,*21 Wis., 621; 35 N. Y., 238; 37 id., 511; 4 Abb. (N. S.), 469 ; 40 N. Y., 155. 4. The court, as a condition of continuing the injunction, should have ordered the payment of that portion of the tax admitted to be just and equitable, as asked by the defendants. The plaintiff admits in his *378complaint that lie ought justly and equitably to pay a sum specified, and he will have to pay that sum, even if he obtains the relief sought. *Bond v. City of Kenosha,*17 Wis., 284; *Mills v. Johnson,*id., 598; *Kersey v. Sup'rs of Milwaukee Co.,*16 id., 185. 5. Before- the' plaintiff, can legally ask for the relief sought in this case, it should affirmatively appear that he was prevented from availing himself of his legal rights by the fraudulent conduct and acts, of the opposite party. 6 Johns. Ch., 87; 1 Comst., 281; 3 Barb., 619; *Albany and W Stockbridge B. B. Co. v. Town of Canaan,*16 Barb., 249.

*H. A.. Wilson*and *P. L. Spooner*for respondent:

I. The complaint charges a. fraud on the part of the taxing officers, which vitiates the whole tax,, and equity will restrain the collection thereof. *Lefferts v. Board of Supervisors of Calumet County,*21 Wisi, 690; *Milwaukee Iron Co. v. Town of Hubbard, supra,*p. 51. 2. All the allegations of 'the complaint áre positive, but those of the answer are some of them “ on information. and belief ” ; which must be held to qualify the general denial; and. the verifications are by parties who could not know, positively that the charges of fraud were not true. An injunction will not be dissolved on the ground that the answer denies all the equities of the complaint, when, the denial of a material allegation positively averred, is upon information and belief. *Atty. General v. Cohoes Co.,*6 Paige, 133; *Ward v. Van Bokkélen,*1 id-, 101; *Fulton Bank v. N. V. & Sharon Canal Co.,*id., 311; *Bodgers v. Bodgers,*id., 426; *Boberts v. Anderson,*2 Johns. Ch., 202; *Carpenter v. Danforth,*19 Abb. Pr. R., 225; *Smith v. City of Appleton,*19 Wis., 468. 3. The wrong complained of could not be brought before' the court by writ of *certiorari,*as that brings up only the record. An action to restrain the collection of the tax is the Only remedy. *Boberts v. Warren,*3 Wis., 736.; *Frederick if. Clark,*5- id., 191.. 4. The acts of taxing officers are chiefly ministerial and not judicial. 5. If there was fraud in the assessment the whole tax is void, and the court, therefore, properly refused to require the pay*379ment of tbe amount admitted to be due as a condition of continuing tbe injunction. It cannot assume tbe power of assessing and levying taxes, and cannot, without doing so, separate tbe illegal from tbe legal tax. *Cram*y. *City of*Janesville, 20 "Wis., 305. 6. Tbe plaintiff bas shown bis willingness to do equity, but tbe defendants, by tbe wrongful act of their agent, have rendered it impossible for him or tbe court to determine what amount of tbe tax be ought to pay.

LYON, J.

This is an appeal from an order made by tbe circuit court, denying a motion of tbe defendants to vacate or modify a preliminary injunction restraining tbe defendant, tbe bounty treasurer, from selling tbe lands of tbe plaintiff, which bad been returned to such treasurer for tbe non-payment of certain taxes assessed thereon. The injunction was allowed upon an *ex parte*application, made when tbe action was commenced. Tbe motion was beard upon tbe complaint and answer, both of which were duly verified.

Tbe complaint alleges that tbe plaintiff is tbe owner of tbe lands therein described, consisting of several lots and parcels in tbe town of Menomonie, in Dunn county, and states tbe sum at which each of such lots and parcels was valued and assessed upon the assessment roll of tbe town for tbe year 1870, by tbe assessor of such town for that year.-

Tbe complaint then proceeds as follows: “ 5. That said assessment roll, with said valuation of said property so entered upon it, was, at tbe annual meeting of the town board of review of said town in said year, laid before said board as required by law; that tbe plaintiff appeared before said board of review at Said annual meeting, and was examined upon oath in relation to tbe valuation of said property as entered upon said roll; that said board of review, after such examination, refused and declined to lessen, reduce or otherwise change tbe valuation entered on said roll of any of tbe said described property,’’ except in a single instance therein specified.

*380. In paragraph ten of the complaint, the alleged value of each lot and parcel of land is given, which value is greatly below that fixed by the board of review in every case ; and it is therein alleged that the plaintiff testified before the board that the values stated in that paragraph were the true values of the respective lots and parcels of land therein described.

This is all of the information which the complaint gives of the testimony before the board concerning the value of such lands. Whether the plaintiff testified further than merely to state the value of his lands, or whether other witnesses testified on the same subject, we are not advised by the complaint.

The values fixed upon the lots by the plaintiff, were much less than the sums at which they were assessed; and, in the case where the valuation of a lot was reduced by the board of review, it was only reduced to a sum which was nine thousand dollars in excess of the value fixed by the plaintiff.

The complaint further alleges that the assessor, “ in assessing as aforesaid the said property of the plaintiff, with the intention and design of making the plaintiff pay more than his just and equal portion of the taxes to be paid in said town, fraudulently and corruptly made a distinction against • the plaintiff, and fraudulently and corruptly assessed his property to an amount greatly in excess of its true, just and equitable value for taxation, and greatly in excess of the assessed value of any and all other property assessed in said town in said yeai-, belonging to and owned by parties other than this plaintiff and those associated in business with'him, as hereinbefore set forth.” It also charges that a majority of the members of the board of review, to wit, the assessor and town clerk, were actuated by the same corrupt and fraudulent motives, in refusing, as such members, to lessen the valuations of the plaintiff’s lands. It is unnecessary to state the further averments of the complaint.

The answer contains a general denial of those portions of the complaint which charge the assessor and town clerk with fraud, and it positively alleges that “the said board of review did not *381make, or attempt to make, any unjust, wrongful or fraudulent discrimination against said plaintiff in tbe assessment or valuation of said real property of tbe said plaintiff.” It also contains further allegations “ upon information and belief,” to tbe effect that such assessment and valuation were honestly and fairly made by the assessor and the board, in strict compliance with the law, without fraud or evil intent, and that the same is a just, true and honest valuation of the plaintiff’s lands.

The averment of fraud in the complaint is positive in form. The counsel for the plaintiff contends that the positive general denial in the answer, of such fraud, is qualified by the subsequent denial thereof on information and belief, for the reason that the chairman of the board of supervisors of the town of Menomonie, and the clerk of the board of supervisors of the county of Dunn, who verified the answer, are not charged with fraud, and would not know positively that the assessor and town clerk were not guilty of the fraud charged. We think that this is a correct position. The motives which controlled the assessor and town clerk in fixing the valuation of the plaintiff’s lands could not be *positively*known to any person other than themselves. No third person can swear positively to the mental processes of these officers. Hence, whatever the form of the denial of fraud in the answer, it amounts to nothing more than a denial upon information and belief. '

But this principle operates as a two-edged sword. Applied to the complaint, which is verified by the plaintiff, the positive averment of fraud therein contained, becomes, in its legal effect, merely an averment thereof upon information and belief.

The denial of fraud being as broad and as positive as the averment thereof, the case comes within the rule laid down in *Smith v. The City of*Appleton, 19 Wis., 468. In that case, the rule is thus stated by the chief justice: “ For the purpose of dissolving an injunction upon complaint and answer, the denial must be of the same positive character as the averment.” See also *Dinehari v. The Town of La Fayette,*19 Wis., 677.

*382It follows from wbat has been said, that, as tbe case now stands, tbe injunction, so far as it is founded upon tbe aver-ments of fraud, cannot be sustained. But it does not necessarily follow therefrom that it sbould.be dissolved. If tbe complaint shows that tbe board of review, to which tbe plaintiff appealed from the valuation of tbe assessor, fixed tbe value of tbe plaintiff’s land above the real value thereof, arbitrarily, and against all tbe evidence relating thereto, produced before it, tbe case eomes -within the decisions of this eourt in *Phillips v. The Oily of Stevens*Point, 25 Wis., 594, and *The Milwaukee Iron Co. v. The Town of Hubbard {ante,*p. 51), and tbe injunction should be sustained without regard to tbe averments of fraud. The allegations of tbe complaint relative to tbe proceedings before tbe board of review have been fully set forth, and tbe answer expressly admits that they are true.

•But we think that tbe complaint is defective in failing to state affirmatively that it contains all of tbe testimony before tbe board of review relating to tbe value of plaintiff’s .land. Although the plaintiff testified that bis lands were assessed at more than their value, it does not appear but that there was other testimony before the board, preponderating over that of tbe plaintiff, and sustaining the valuations fixed by tbe board. All reasonable presumptions must be made in favor of tbe regularity and validity of tbe proceedings of publie officers and tribunals. This is a very familiar rule. An application of it to this case requires us to presume that there was sufficient testimony before tbe board .of review to sustain its action in fixing tbe value of tbe plaintiff’s lands. We are not at liberty to disturb tbe assessment unless it affirmatively appears that tbe same was made in violation of law. Tbe mere statements that tbe assessment is too high, and that testimony was produced to tbe board of review tending to show that it is too high, are not alone sufficient .to demonstrate that tbe board ought to have reduced tbe valuation. These statements may be true, and yet tbe board may have fixed tbe valuation in *383strict accordance with the evidence before it, and as required by law.

Because of such defect in the complaint, we are compelled to hold that the injunction cannot be sustained on the ground that the valuations were fixed too high by the board of review.

We think also that the averments of fraud in the complaint, at least so far as fraud is charged against members of the board acting as such, are defective in the same particular. The facts constituting the alleged fraud should be stated ; and one very important, if not an essential, fact to make a case of fraud against such officers, is, that the board acted arbitrarily and against the evidence in fixing such valuations. As it is not claimed that the injunction can be sustained upon any other grounds than those above discussed, it follows that it should be dissolved.

The order of the circuit court, denying the motion to dissolve the injunction, must be reversed, and the cause remanded with directions to grant the motion.

*By the Court*— So ordered.