Parker v. Board of Supervisors

| Wis. | Jun 15, 1853

By the Court,

Smith, J.

This was an appeal from the decision of the board of supervisors of Grant county to the Circuit Court of that county.

At the annual meeting of the board in November, 1851, the plaintiff in error presented to the said board an account for merchandise, amounting to the sum of $23.41. The account was made out by items and dates specifically, and was endorsed as follows :

“ I hereby certify that I purchased the articles with-named for the use of said county and for prisoners.

“ GROK0E R STRONG, Simf?

Tlie return shows that the account was presented to the board, was entertained, considered, and the sum of $15.00-allowed thereon.

The claimant appealed to the Circuit Court, when the district attorney moved to dismiss the appeal for the following reasons:

1st. Because the claim and amount was never legal* ly presented to the board, in the manner provided by law, and was not made out and verified by affidavit, as required by law.

2d. The said board never had any jurisdiction to allow said account under the law, and this court has no appellate jurisdiction over said account and claim, the subject matter of this suit.

The court below sustained this motion and dismissed the appeal, and rendered judgment against the plaintiff in error for costs, to which ruling the plaintiff" excepted.

The question presented is, Had the Circuit Court jurisdiction of the cause ?

It is contended by the defendant in error that the board of supervisors had no jurisdiction of the subject matter of the suit, because the account was not made out and presented in conformity with section 32 of chapter 10 of the Revised Statutes, which section is as follows:

“No account shall be allowed by the county board of supervisors, unless the same shall be made out in separate items, and the nature of each item specifically stated; and where no specific fees are allowed by law, the time actually and necessarily devoted to the performance of any service charged in such account shall be specified. Which account, so made out, shall t 9 be verified by affidavit, to be filed therewith.”

No objection can be taken to this account becauseof it is not sufficiently itemized. The only objection. seems to be, in that it was not verified by affidavit. Whether or not there was actually an affidavit verifying the account filed with it, does not certainly appear, but it seems to have been taken for granted in the court below that there was none. It is insisted that such affidavit is necessary to give the board jurisdiction. This is the only question in the case. The law which gives the county board jurisdiction to examine and settle claims against the county, is the second clause of the twenty-second section of the same chapter, and is in the following words : “ To examine and settle all accounts of receipts and expenses of the county ; and to examine, settle and allow all accounts chargeable against the county; and when so settled, they may issue orders therefor, as provided by law.” Here is the source of jurisdiction. By the 32d section it is made the duty of the board to require all accounts to be made out in separate items, <fcc. Whether this clause of the 32d section precludes the board from allowing any account, unless it is so made out in separate items, it is not necessary now to determine, for this case does not present that question in a proper manner to be adjudicated. It is difficult to conceive how items in an account can be more specifically stated than in the account of the plaintiff in error.

The last clause of the last-mentioned section says : “ which account so made out shall be verified by affidavit, to be filed therewith.” It was no doubt competent for the hoard to have rejected this account, for the reason that it was not verified. But their juris-didion- of the matter did not depend upon such veri-Yhe statute, in that respect, is directory merely. Though it might he a neglect of duty in the hoard to waive or dispense with the affidavit, yet, inasmuch as they did entertain the claim, and proceed to consider the same without requiring the affidavit of the claimant, we do not think they were acting without jurisdiction.

It will he observed that the language of the first clause of the section is negative and prohibitory : “No account shall he allowed unless the same shall he made out in separate items,” &c. The language of the last clause, in respect to the verification, is affirmative and directory: “ which account so made out shall he verified by affidavit,” &c. The hoard are not prohibited from entertaining and passing upon the account, because it wants the verifying affidavit. It is true, the party claiming is directed so to verify his claim. But his neglect to thus verify it does not oust the hoard of its jurisdiction.

The hoard did entertain the account and proceeded to pass upon it, waiving its verification by affidavit. Having done so, they cannot now disclaim their own acts. They made no objection to the account, for the cause alleged in their motion to dismiss the appeal. If they had rejected the account for that reason on its presentation, the defect might have been supplied. But they did not, and they proceeded to adjudicate upon its merits, probably considering the sheriff’s certificate as equivalent to the affidavit directed by the statute, or waiving the latter altogether, or not having thought of it at all. They examined and passed upon it upon its merits, allowing a part and rejecting a part; hut what parts were allowed or what rejected, what prices conceded, or what disputed, does not pear. We think they had jurisdiction of the matter, and an appeal properly lay from their determination, and that the Circuit Court consequently had jurisdiction, and erred in dismissing the appeal.

The judgment of the Circuit Courtis reversed, with costs.