The admission in the answer, and the undisputed testimony of the assessor, show conclusively that the assessment in question was made upon a basis of value unauthorized by law. The statute provides that “ real property shall be valued by the assessor from actual view, at the full value which could ordinarily be obtained therefor at private sale, and which the assessor shall believe the owner, if he desires to sell, would accept in full payment.” Laws of 1868, ch. 130, sec. 16 (Tay. Stats., 400, § 31).
The assessor valued the lands in the town of Cicero at what he thought they would bring at forced sale for cash, knowing, when he did so, that such valuations were less than their market value. The rule of the statute is as certain and easy of application as any which can be devised, and is in harmony *59with tbe requirement of the constitution, that the rule of taxation shall be uniform. The rule of the assessor is utterly uncertain, and practically leaves him at liberty to value property as he pleases, with but little regard to its actual value. No argument is needed to show that such a rule must necessarily be destructive of uniformity in valuation, and therefore in taxation; for the valuation is the basis upon which the amount of tax is determined.
The unauthorized rule of valuation adopted by the assessor goes to the groundwork of the assessment, and vitiates the tax based upon it. It was so held in Hersey v. The Supervisors of Barron County, 37 Wis., 75, and in the late cases of Marsh v. The Supervisors of Clark County, 42 Wis., 502, and Schettler v. The City of Fort Howard, ante, p. 48. Those cases are decisive of the present case; and the subject is so fully considered in the opinions, that further discussion of it here would be superfluous.
It was said on the argument, that the question we have been considering is not raised by the complaint. The gravamen of the complaint is, that the assessment, and consequently the tax founded upon it, are illegal and void; and certain facts are alleged in the complaint, which, it is claimed, demonstrate that they are so. These allegations of fact are denied in the answer, but another fact is stated therein, which, with the evidence introduced by the defendants, shows conclusively that the same are void. The question, therefore, is presented by the pleadings; and if the complaint is defective in this particular, the defendants could not have been surprised or misled by it, and we think it a proper case for amendment, either before or after judgment. E. S., ch. 125, secs. 33 and 34.
The judgment of the circuit court must be reversed, and the cause remanded for further proceedings according to law.
By the Court. — It is so ordered.