Lincoln County v. Oneida

| Wis. | Oct 20, 1891

Wisrsnow, J.

It is unnecessary to decide whether, as appellant claims, the right of Oneida county to a share of the taxes of 1886, under sec. 8, ch. 411, Laws of 1885, had become a vested right prior to the passage of ch. 153,■ Laws of 1887. Whether vested or not, the right still exists. By sec. 4974, E. S., it is provided that the repeal of a statute shall not defeat or impair rights of action accrued under such statute before the repeal, but such right of action shall be preserved and remain in force, unless specially and expressly remitted, abrogated, or done away with by the repealing statute. That the legislature may, by a prospective statute such as this, save rights of action which have accrued, is settled. ‘ Garland v. Hickey, 75 Wis. 178" court="Wis." date_filed="1889-12-03" href="https://app.midpage.ai/document/garland-v-hickey-8183210?utm_source=webapp" opinion_id="8183210">75 Wis. 178. That said statute saves the right of action of Oneida county in this case seems very plain. There is no express abrogation, consequently the 'mere repeal does not affect it.

But it is objected that this counterclaim cannot be maintained because the claim has not been presented to the county board in accordance with the provisions of sec. 676, E. S.¹ This objection is not tenable. The liability or right of action is created by the legislature. It is fixed and cer- , tain. It matures at a given time, and admits of no defense. Must Oneida county wait until after the regular fall meeting of the county board before its right of action is perfect ? If such be the claim, then there is plainly a contradiction between the general law and the terms of this act, because the act fixes the time of payment, and, as a necessary result, the right of 'action in case of nonpayment at a time certain, viz., within thirty days after the return of the delinquent lists. We hold that the provisions of the special hot which creates the liability are inconsistent with sec. 676, and that upon familiar principles the special act must prevail.

The remaining objection is that Oneida county has not legal capacity to maintain this counterclaim. This objection was not argued in the brief nor in the oral arguments, so we are not apprised of the exact grounds upon which it is supposed to be based; but we assume that the point is-that the section in question provides that the moneys shall be paid to the treasurer of Oneida county, and that the cause of action accrues to the county treasurer, instead of to the county itself. This objection is purely technical. The money,, if collected, belongs to the county. The county is the real party in interest. We conclude that it may maintain this counterclaim.

The demurrer should have been overruled.

By the Court.— Order reversed, and action remanded for further proceedings according to law.

ORton, J., took no part.

1 Sec. 676, E. S., provides that “no action shall he brought or maintained against a county upon any account, demand, or cause of action when the only relief demandable is a judgment for money, except upon a county order, . . . unless such claim shall have been duly presented to the county board, and they shall have failed to act upon it within the time fixed by law.” — Bep.