Ashland County v. Knight

Dodgke, J.

The judgment dismissing the complaint in this action is correct for two reasons: Eirst. Sec. 1059, Stats. 1898, upon which plaintiff relies, confers no authority to reassess, in a subsequent year, property which was assessed and entered upon the tax roll for the year in which it should have-been taxed, and where the said prior assessment or tax has-been set aside or determined to be illegal or void. The authority to re-assess real or personal property is given by sec. 1059 only when such property is “omitted from assessment ... by mistake or inadvertence.” That the legislators did not mean by this expression to include a situation such as above described and as presented in this case is rendered certain by the accompanying sec. 1087, Stats. 1898, which provides expressly for such a situation. The latter section has not been extended to personal property of this character, though in effect made applicable to some other kinds by ch. 351, Laws of 1899, enacting sec. 1087a.

A second reason why the' present tax cannot be collected from the estate of John H. Knight, deceased, is that the property is not shown to have belonged to him either in the year *66 1901, -when the tax upon it was held void, ox at any other time, and it is made to appear affirmatively that such property was not in his possession in 1903, when it was attempted to he reassessed. We search in vain for any suggestion in the statutes that a tax can he levied against any person other than the owner, except when he is in possession of the property either as agent or trustee. Neither of the two sections (secs. 1040, 1044, Stats. 1898) which recognize possession of property by an agent in this state as a ground for assessment in his name, and levy of a tax against him, suggests that such assessment or levy is authorized in the absence of possession at the time of such acts. The contrary, in an analogous situation, is clearly intimated in Fond du Lac v. Estate of Otto, 113 Wis. 39 , 88 N. W. 917 , and would seem to he a necessary view, when we consider that the collection of a tax from one not the owner of the property would he a pretty clear taking of property without due process of law, unless, by reason of his possession thereof or some other equally effective circumstance, he -were able to reimburse himself out of the property. None of the reasons can be invoked which justified the construction placed upon sec. 1059, as amended by ch. 50, Laws of 1899, in State ex rel. Davis & S. L. Co. v. Pors, 107 Wis. 420 , 83 N. W. 706 , where a re-assessment was sustained against the owner, although he had parted with the property before re-assessment, on the ground that his ownership the preceding year placed upon him such an obligation to pay a proportionate share of the taxes of the town as to warrant the legislature in directing re-assessment, levy, and collection of such taxes in a subsequent year merely in enforcement of that obligation.

By the Court. — Judgment affirmed.