219 Wis. 442 | Wis. | 1935
This was an action under sec. 40.10, Stats., which prescribes the powers and duties of a school district treasurer. Sec. 40.10 (2) (a), authorizes suit by the treasurer of a school district “for all money appropriated to or collected for the district.” The complaint alleges that during the school years 1930-1931 and 1931-1932, certain persons of school age, residing in the town of Portland, attended and were enrolled in the Cashton high school, operated by the school district of which plaintiff is treasurer; that pursuant to sec. 40.47 (5), Stats., the clerk of the school district filed with the clerk of the town of Portland, prior to July, 1931, the verified claim of the school district against the town of Portland for the tuition of these pupils, and that
The answer of the defendant town treasurer denied knowledge or information sufficient to form a belief, (1) as to the number of nonresident students attending Cashton high school during the years in question; (2) as to the amount of tuition for such nonresident students for such school years; and (3) whether verified claims were filed as alleged in the complaint. It was further alleged that the town of Portland, by its proper officers, ordered the money raised for tuition to be deposited in the general fund of the town, to be paid out only on authority of the town board and upon order duly signed by its chairman and clerk; that it further ordered that no portion of the money raised for tuition of pupilg attending Cashton high school be paid to the Cashton high school district; that in consequence thereof, defendant was and is unable to comply with plaintiff’s demands. Upon being impleaded, the town of Portland filed an answer and pleaded in abatement, (1) a denial that verified claims were filed as alleged in the complaint and required by law; and (2) that any such claim was audited or allowed by the supervisors of defendant town. As a plea in bar, it denied the capacity of plaintiff to sue, and repeated its denial that any verified claim was filed. It admits that the clerk of the, town spread upon the tax roll, levied, assessed, and prorated an aggregate sum for payment of tuition due various high school districts whereat persons residing in the town of Portland had attended during each of the school years in question, but it alleges that no part thereof was specifically levied
There are two assignments of error: (1) That the court erred in ordering summary judgment in favor of plaintiff against the town treasurer; and (2) that it erred in sustaining plaintiff’s demurrer to the answer and counterclaim of defendant town. In connection with his motion for a summary judgment against the defendant town treasurer, plaintiff produced affidavits to the effect that verified claims were filed with the clerk of the town of Portland, and to the effect
“The money collected by him [the town treasurer] for the district in no sense belonged to the town, and.no resolution or authorization by the town board was required to permit the town treasurer to pay to the district the taxes collected by him for it. In such a situation and upon due demand that payment be made, the town treasurer and his bondsmen become Hablé to the district for the taxes collected.”
See also to the same effect Conover v. Eagle River Joint U. F. H. S. District, 211 Wis. 470, 248 N. W. 429.
Very persuasive and able arguments seeking first to distinguish and then to overrule these cases have been made. These are principally based upon the contention that a school district, such as plaintiff, is not in the same position as the county or some arm of the government; that its verified claim is not a certification of taxes to^ be assessed by the town for the school district, but constitutes a claim against the municipality; that while the municipality is directed in a proper situation to place the amount of the claim upon the tax roll, and collect it, it is fundamentally a claim against the municipality. It is contended to follow from this that
In the brief of the defendant town some reliance is had upon certain statements in the opinion in First Nat. Bank v. York, supra, to the effect that “if it sháll appear . . . that the . . . town treasurer still has in his hands moneys belonging to the district, he should be required to pay the same over to the district,” and “then the district should have judgment . . . against the town for so much of the moneys belonging to the district as were used by the town for municipal purposes.” These two statements may be somewhat misleading. It was not intended to hold, nor was it held, in
It is our conclusion that it appearing from the pleadings and affidavits that there is no issue of fact, as between the defendant treasurer and the school district, and the law applicable to these facts having been settled by the York and Conover Cases, the court properly granted. the summary judgment.
It next becomes necessary to consider the second assignment of error.. Addressing ourselves to the defensive matter set up in the answer, we are confronted with precisely the same point’ raised on summary judgment, with one exception. While in the case of the town treasurer the fact of the proper filing of verified demands must be taken as a verity, due to the affidavits filed under the summary-judg
What has been said heretofore likewise disposes of the set-off and counterclaim. In discussing both the counterclaim and answer, we find no occasion to consider the contention of plaintiff that the town has no standing to file an answer in this case because no relief is demanded of it by the complaint, and that it has no standing to file a counterclaim because a counterclaim implies that a claim has already been
This disposes of the only assignments of error raised, and there is no occasion to consider or speculate upon the situation created by the fact that a summary judgment has been granted upon the complaint without any account being taken of the defendant treasurer’s cross complaint against the town. There was, of course, no issue upon this cross conn plaint, and it was conceded in the briefs filed by the defendant town that it was liable over to the treasurer. We make no comment upon this, further than to state that neither what has heretofore been said nor the judgment herein, operates to prejudice the rights of the defendant town treasurer to pursue his remedy against the defendant town.
Ry the Court. — The orders and judgment are affirmed.