September 12, 1951 —
October 9, 1951.
APPEAL from a judgment of the circuit court for Milwaukee county: AUGUST E. BRAUN, Circuit Judge. Affirmed.
For the appellant there was a brief by B. F. Saltzstein, Aaron D. Levine, and Howard G. Brown, all of Milwaukee, and oral argument by Mr. Brown.
For the respondents there was a brief by Walter J. Mattison, city attorney of Milwaukee, and Harry G. Slater, first assistant city attorney, and oral argument by Mr. Slater.
This appeal presents the question whether the board of review of the city of Milwaukee acted without or in excess of its jurisdiction and in an arbitrary manner in assessing the improvements on relator's real estate at $150,000 for the year 1949.
The property involved is an office building located on the fringe of Milwaukee's downtown area. In 1945 an assessment of $50,000 was made by Mr. Engelhardt, the assessor. Mr. George Ehrbach, Mr. Engelhardt's successor, made the same assessment for the year 1946. In 1947 a special appraisal division of the tax commissioner's office, after a detailed examination and study of the factors to be considered in determining proper values for assessment purposes, recommended that the improvements be assessed at the sum of $100,000. The assessor adopted the recommendation and carried the same figure into the assessment roll for the year 1948.
In 1949 the assessor placed the improvements upon the assessment roll at a value of $212,000. Upon objection filed by relator a board of assessors of the city concluded that they should be valued at $175,000. The board of review, upon petition of relator for a review, assessed the improvements at $150,000.
Petitioner made application to the circuit court for a writ of certiorari. Defendants made motion for summary judgment. The judgment dismisses the relation and writ, grants defendants' motion for summary judgment, and affirms the action of the board of review.
The only witnesses who testified as to the value of the property were Mr. Ehrbach, the assessor, and Edward Bielefeld, one of the members of the research and appraisal division of the tax commissioner's office. The former placed a value of $212,000 upon the property; the latter arrived at a value of $175,000. The relator makes a vigorous attack upon the testimony of these witnesses, contending in the, case of that of Mr. Ehrbach, that his testimony is not consistent with determinations earlier made by him, and with respect to that of both, that their conclusion is not based upon a proper study and analysis of the factors to be considered in determining value. Our conclusion makes it unnecessary for us to treat with this attack.
Relator relies upon the rule that the decision of the board of review must be based solely upon the evidence before it; that the board had no alternative but to find the value of the property to be $100,000, fixed by Mr. Ehrbach in 1947 and 1948, or to accept the value of $175,000 or $212,000 placed upon it for the year 1949 by the two witnesses heard by the board. It cites State ex rel. Kimberly-Clark Co. v. Williams, 160 Wis. 648, 152 N.W. 450, to the point that a board may not follow its own opinion on values and ignore the sworn testimony produced. If it were not for the fact that relator has failed to show that it has been prejudiced by the action of the board we would be compelled to consider this contention. It cannot complain of the determination for the reason that it received a decision most favorable to it under the facts of the case.
A writ of certiorari is not one of right, but is granted in the sound discretion of the court. The petitioner is not entitled to relief unless he has sustained an injury from the ruling in the proceeding sought to be reviewed. 10 Am. Jur., Certiorari, p. 530, sec. 6; 14 C.J.S., Certiorari, p. 198, sec. 50; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 93 N.W. 542; Knapp v. Heller, 32 Wis. 467, 469. In the latter case it was said that an action of certiorari to review the proceeding of a board of review "is quite analogous to a proceeding in equity to set aside a tax [as was McIntyre v. White Creek, 43 Wis. 620], where the court inquires whether any injustice has been done, and whether there is any equitable ground for interference. If there is not, the court will decline to interfere in the matter."
Conceding, as it does, that the board might properly have placed a value of $212,000 or $175,000 upon the property, and considering also that the board had before it no evidence to sustain a finding of a lesser value, the relator cannot successfully contend that an assessment of $150,000 results in an injustice to it.
By the Court. — Judgment affirmed.