125 Wis. 9 | Wis. | 1905
Lead Opinion
The following opinion was filed March 14, 1905 :
At the very threshold of this case we meet a question which, if answered in favor of the appellants, completely disposes of all defense. That is, whether the town treasurers had any authority in law to accept the certificates of audited -expenses, even if valid and proper, in payment of county taxes, as collecting agents for the county, and to tender them in place of money. Such authority must rest in express statute, for the receipt of governmental revenues in money is so essential to the performance of the functions of government that no contrary policy can be assumed without express legislative declaration. Keep v. Frazier, 4 Wis. 224; Iron River v. Bayfield Co. 106 Wis. 587, 592, 82 N. W. 559; 2 Cooley, Taxation (3d ed.) 804; 27 Am. & Eng. Ency. of Law (2d ed.) 751. Highly important governmental duties are delegated to counties, upon the performance of which the welfare of the whole community depends, such as maintenance of highways and bridges, as also of courts of justice; registration of conveyances ; erection, repair, and preservation of public buildings, •court-houses, jails, county asylums, and the like. To accomplish these, much wisdom and discretion must be exercised in making provision for revenue in advance for each year and in applying it. Any substantial failure or interruption of revenue may seriously embarrass, if not wholly suspend, the performance of such duties. It is not surprising,, therefore, that
Respondents rely for authority in accepting these certificates on sec. 1077a, Stats. 1898, which provides that the fees and expenses of a commission to review the county equalization are, “with all other expenses connected with the making of' the application and the subsequent proceedings, to be audited and allowed as a county charge by the county board or by the circuit judge appointing them, and when audited by the circuit judge to be paid in the same manner that jurors and witnesses in state cases are paid.” The ascertainment and payment of both jurors and witnesses in state eases are expressly and in terms regulated by sec. 2560, Stats. .1898, as to jurors, and sec. 4060 as to witnesses, which provide for the issue of a certificate to each by the clerk of court, and direct that “thereupon the County treasurer shall pay the amount thereof
Another consideration significant of the legislative intent is, that secs. 2560 and 4060 are the only ones which relate to •payment of jurors and witnesses, either in terms or in the primary, accurate, and most usual meaning of that word. “To pay” means primarily to transfer or deliver money or other agreed medium from the debtor to the creditor; and while the word “payment” is often used merely to signify satisfaction or discharge of an obligation by any means, as by setting off some other or the like, as in Marinette v. Oconto Co. 47 Wis. 216, 2 N. W. 314, that is a secondary and somewhat loose use of the term. Payment, of course, works satisfaction of an obligation; but the two are not equivalents, for satisfaction and discharge may be accomplished without payment. Bronson v. Rodes, 7 Wall. 229, 250; Milwaukee M. Ins. Co. v. Russell, 65 Ohio St. 230, 62 N. E. 338; Claflin &
For these reasons we have reached the conclusion that no statute authorized the town treasurers to receive these so-called certificates in payment of taxes, or to be allowed credit for them in performing the legal duty of payment to the county treasurer; hence that judgment must go against the defendants. Since it may, perhaps, be that parties not now before the court may be interested in the ultimate question of the county’s liability for these expenses, we refrain from consideration of any other of the numerous positions discussed, as to which no opinion is intended to be suggested by any expressions hereinabove used.
The town treasurers, having returned officially that the county taxes are actually paid to an amount exceeding what they settled for in the sums represented by these certificates, without in any way indicating those individual taxes in satis
By the Court. — Judgment reversed, and cause remanded with directions to enter judgment as demanded by the complaint.
Rehearing
The appellants moved to modify the mandate, and the respondents moved for a rehearing.
The appellants contended, inter alia, that, the court having decided defendants liable for the penalty and interest imposed by sec. 1117, Stats. 1898, the court erred in directing judgment to be entered therefor, asserting that the prayer for relief demanded more, viz., the money withheld together with five per cent, damages and ten per cent, interest from; the day payment should have been made on the balance of unsettled taxes due from the town treasurer, together with tern per cent, damages and ten per cent, interest from the time' the town treasurer failed, on demand, to pay over the public; moneys collected and received by him.
The motions were denied, and the following amendment to the mandate was filed, on May 2, 1905:
By the Court. — The judgment and mandate of this court rendered March 14, 1905, is now amended so as to read as follows, viz.:
Judgment reversed, and cause remanded with directions to enter judgment in favor of plaintiffs and against all the defendants for the sum of $1,500, together with five per cent, damages and interest at the rate of ten per cent, per annum from March 15, 1902, as also for costs.