#### Crane and another vs. The City of Janesville and another.

*Assessment of land to right owner*— Effect *of assessing two lots m gross to a person owning Tmt one of them.*

1. The assessors of the city of Janesville, like assessors of towns in this state, are required by law, in assessing land, to set opposite the description of each tract of land the name of the owners if known, otherwise the word “unknown.”

2. Lots 76 and 7S of a certain addition to said city, having been assessed *toge'her*as the property of a person who did not own and never had owned lot 78, and a gross tax having been assessed against them, the owner of lot 78 was entitled to an injunction restraining all proceedings to collect such tax, although a notice was published pursuant to sec. 8, ch. 48, Laws of 1862, that the tax lists had been completed, and a reasonable opportunity was given for parties to appear and have their lists corrected, and the owner of said lot did not appear and have the proper correction made in respect to it.

APPEAR from the Circuit-Court for *Rode*County.

This action was brought against the *City of Janesville*and the treasurer thereof, to restrain the sale of lot 78 in Smith, Bailey & Stone’s addition to said city, for the taxes of 1854 ’55, ’56 and ’57, re-assessed in 1862 under ch. 48, Laws of 1862. The facts found by the circuit court are sufficiently stated in the opinion. Judgment for the plaintiffs; and defendants appealed.

*Olías. G. Williams,*for appellants,

to the point that plaintiffs •were-estopped by their own neglect to have lot 78 assessed to them after the notice required by sec. 3, ch. 48, Pr. & L. Laws of 1862, had been given, cited *Wendell v. Van Rensselaer,*1 Johns. Ch., 344; *Storrs v. Barker,*6 id., 166; *Norton v. Kear-ney,*10 "Wis., 443.

*A. A. Jackson,*for respondents,

cited *State ex rel. Roe v. Wil-liston, ante, p.*228; *Wallingford v. Kske,*24 Me., 386; *Hayden v Foster,*13 Pick., 492 ; *Willey v. Scoville,*9 Ohio, 43; *Shimmin v. Inman,*26 Me., 228 ; *Barker v. Blake,*36 id., 433; *Whitney v. Thomas,*23 N. Y., 281.

Cole, J.

The court below found as facts that the re-assessed taxon lot 78 for the year 1857 was not paid; that for that year *306tbe lot was assessed with lot 76, and a gross sum of about $130 was set opposite tbe two lots in tbe re-assessment; tbat they were botb assessed to A. Hyatt Smith, but be did not own lot 78 in 1857, and never owned it; and tbat tbe two lots bad always been owned by different persons. We do *not understand*tbat tbe correctness of tbis finding was seriously controverted; and we think it fully warrants tbe judgment rendered in tbe cause. In tbe case of *The State ex rel. Roe v.*Williston, *(ante,*p. 228), tbis court decided tbat tbe law made it tbe duty of tbe assessors of tbe city of Janesville to set opposite to each tract of land in tbe assessment roll, tbe name of tlie owner, if known, and if not known tbe word “ unknown,” and tbat tbis express requirement of tbe statute could not be disregarded by such assessors. In addition to tbe authorities cited in tbat case to tbe proposition that-an assessment of land to one not tbe owner was unauthorized, may be further cited tbe case of *Whitney v.*Thomas, 23 N. Y., 283, which lays down tbe doctrine tbat a failure to comply with such material provisions of law renders tbe assessment void. In tbis case it appears tbat lot 78 was assessed for 1857 to a person who did not then and who never did own it. Again, there was another gross error connected with tbe assessment of tbis lot for tbat year. It was assessed with lot 76, when those lots were owned by different persons, and a gross sum or tax of $130 was assessed to tbe two lots. We know of no principle upon which such an assessment and levy of taxes can be sustained. Such a practice of jointly taxing separate lots belonging to different individuals strikes at tbe very foundation and reason of all assessment laws.

It is claimed tbat these objections to tbe assessment of tbe tax upon lot 78 for 1857 ought now to be disregarded, because sec. 3, chap. 48, Laws of 1862, provided for tbe publication of a notice that tbe tax lists bad been completed, and gave a reasonable opportunity for parties to appear and have tbe lists corrected; and if tbe owner of tbe lot then failed to appear and make tbe proper corrections in regard to tbe irregularity in tbe *307assessment of tbe tax, be ought now to be beld estopped from questioning its validity. "We were not referred to any case which lays down any sncli doctrine; and we think such a rule would be dangerous to the rights of parties. This court has already adopted a very liberal rule for the government in actions brought to restrain proceedings for the collection of taxes, in holding that where the legal taxes and charges justly chargeable against real estate can be ascertained, and the legal sums can be separated from the illegal, equity will require the payment of the former as a condition of relief against the latter. It is impossible to make any application of that rule here, unless the court assumes the power of re-assessing and relevying taxes, which duty belongs to other officers specially designated and appointed for that purpose. We cannot, therefore, see that any principle of estoppel applies under the circumstances of this case.

*By the Court*— The judgment of the circuit court, enjoining all proceedings for the collection of the taxes assessed against lot 78 for the year 1857, is affirmed.