The following opinion was filed October 25, 1892:
Lyon, C. J.
Although the orders appealed from contain the rulings of the circuit court on two demurrers and two motions, the question by which each order must be tested is, Does the complaint state facts sufficient to constitute a cause of action? If it does, all the orders must be reversed. If it does not, they must all be affirmed.
We think the learned circuit judge held correctly that as soon as Oneida county was organized it became the debtor of Lincoln county for its proper proportion of the indebtédness of the latter county to the state, -and hence that the provisions of ch. 314, Laws of 1881, directing the drainage fund, which otherwise would have been payable to Lincoln *657county, to be retained in the state treasury and applied to the payment of such indebtedness, ceased to have effect in Oneida county; and that, from its organization, the latter county was entitled to receive its proportion of the drainage fund, and was liable to be taxed to pay its proportion of such indebtedness of Lincoln county. But were it held that the act of 1881 continued in force in Oneida county after its organization, and that such county was not entitled to receive any portion of the drainage fund while the act remained in force, we should further be of the opinion that such act was repealed by ch. 153, Laws of 1887, which placed that county under the general laws of the state in respect to the indebtedness of the county to the state. Such we think is the meaning of the provision that the amount of such indebtedness appoi-tioned to that county shall be paid by it “ in the same manner as if the loan had been made to said county of OneidaP This language seems to exclude the hypothesis that Oneida county was to remain subject to the special provisions of the act of 18S1, else ch. 153 would have so provided. We think the fair inference from the language employed is that the legislature intended to provide and did provide that the indebtedness of Oneida county to the state should be payable in the same manner as it would have been had the state made a loan directly to that county, under the general laws on that subject. S. & B. Ann. Stats, secs. 2580-258/1 In such case the debt would have been levied upon the county in annual instalments, and the money raised by tax to pay the same, and the drainage fund would be paid over to the county for the towns entitled thereto, under the general laws in that behalf.
We also think it is immaterial that the drainage fund belonging to the defendant towns was never actually paid into the county treasury. The county could have enforced payment thereof, and then would have distributed the same *658to the towns pursuant to the statute. In that case the towns would have received the same amounts allowed them by the county board of supervisors, and the same amounts would have been required to be raised by tax on all the taxable property of the county to pay its indebtedness to the state. Instead of resorting to that process, the county acquiesced in the unauthorized retention by the state of the drainage fund, and its application on such indebtedness, and allowed the claims of the towns for the portion of the fund to which they would have been entitled had the county received it. The amount thus allowed must, of course, be raised by taxation, but no taxpayer will be required to pay any more tax than he would have been required to pay had the county insisted on actual payment to it by the state of the drainage fund. In substance and legal effect the fund was paid to the county, and by it appropriated to the towns entitled thereto.
The opinion of Judge BaedeeN on these questions is so clear and satisfactory that we feel relieved from the necessity of further discussion of them.
The county board of supervisors allowed the defendant towns interest on the amounts due them, respectively, from the time such amounts were credited to the county on its indebtedness to the state. It is claimed that this'was unauthorized. When those amounts were thus credited, interest thereon ceased to be chargeable to the county. At the same time the towns were entitled to the money thus credited to the county. We perceive no good reason why such interest was not properly allowed the towns.
By the Oourt.— The orders of the circuit court from which this appeal is taken are all affirmed.
Upon a motion for a rehearing there was a brief for the appellant by Levi J. Billings, of counsel, and a brief for the respondents by Alban & Barnes.
The motion was denied January 10, 1893.