Savage v. Supervisors of Crawford County

10 Wis. 49 | Wis. | 1859

By the Court,

Cole, J.

The single question arising in this case is, whether an action can be maintained against the supervisors of a county, upon a county order, duly issued, after the same has been presented to the treasurer of the county, and payment thereof has been refused, for want of funds in the county treasury. The general capacity of a county to he sued upon a claim against it, was not questioned on the argument, neither could it well be, in view of sec. 2, chap. 13, R. S., 1859, which declares that each organized county in the State shall be a body politic and corporate, and as such competent to sue and to he sued, &c. Nor is it objected that this action is not in conformity to section 19, of the same chapter, which prescribes the name or manner in which a county can be sued. Conceding that a county, by the laws of this State, is a quasi corporation, erected for the purposes of local government, with certain defined powers, capable of being sued, in the manner adopted in this case,-on a proper claim ,• still, it is insisted by the counsel for the county, that no action can be maintained upon a county order. No express provision of law is relied upon in support of this position, as prohibiting a suit from being brought upon a county order; but certain considerations of inconvenience and public policy are suggested, for the purpose of showing that an action ought not to be given on such a liability; and it is said that if an action can be maintained upon a county order, that then in the present embarrassed condition of the finances of many of the counties in the State, and the quantity of unredeemed county orders now in circulation in them, innumerable suits may be instituted upon these orders, and judgments recovered, with costs; thus greatly increasing the burdens of the tax payers, by these unnecessary legal proceedings. It is not to be denied, that there is very great force in these considerations; and were we at liberty to give a decision to advance that line of policy which would best subserve the interests of the tax payers of the counties, and promote the public good, it is quite probable that we should hold that no action would lie upon a county order. But it is obvious that' these considerations of expediency can have no weight with courts, when the law is clear. It is equally evident, we think, that, under our statute, a county order is a claim or evidence óf a county liability, ere-ated by a competent authority, and may be the ground of an action against the county. In the clearest manner, the county Board of Supervisors are authorized to examine, settle and allow all accounts chargable against the county, and when so settled, may issue county orders therefor, as provided by law. § 27, chap. 13, subdivision 2: The Board are required not to issue, in any one year, a greater amount of county orders than the amount of county tax levied in such county for such year. It is undoubtedly true, that a disregard of this wholesome restriction upon the county boards to issue these orders, has often proved to be very detrimental to.the best interests of the counties; but upon the question as to whether an action can be maintained upon a county order, the following section of the chapter determines it conclusively in the affirmative. Section forty-two- reads as follows: “ No action shall hereafter be maintained by any person against a county, upon any claim or demand, other than a county order, until such person shall first have presented his claim to the board of supervisors of such county, for allowance.” This language is certain and precise, and clearly conveys the intention of the legislature. That intention was to impose a restraint on the commencement of suits against the county upon a claim, before the same had been presented to the county board’ for allowance. The county board is the proper authority to settle and allow the claim ; and the right to bring a suit against the county is not complete until the claim has been presented to the board, for allowance. Hence the language: “ no action shall hereafter be maintained, by any person, against a county, upon any claim, until, &c. But notice the exception, “ upon any claim or demand, other than a county order as though the section had read, that no action shall be maintained by any person against a county, upon a claim, until it shall be presented to the county board for allowance, provided that this shall not apply to a county order, upon which an action may be maintained, without being first presented to the board, for allowance; thus by the strongest implication recognizing the right to maintain the action, when founded upon a county order, without any restriction whatever; but when the suit was instituted upon any other claim imposing the condition that it shall first be presented to the board for allowance, before the action can be maintained. We are unable to perceive how any other construction can fairly be placed upon this section. The plain, obvious idea conveyed by the language used, seems to be what we have above stated. Should this interpretation of the law lead to injurious consequences, the remedy is with the legislature, by amending the statute, and not with the courts, whose duty it is to construe the enactment by the language it contains.

We were referred to some cases, by the counsel for the appellant, to show that no action could.be maintained against a county, upon a claim against the same. The answer to this is, that our statute expressly declares otherwise. So, such cases as that of Wood et al. vs. The County of Hartford, 12 Conn., 404, do not apply; and as little applicable to the case under review, is the doctrine laid down in Brady vs. Supervisors of New York, 2 Sand. Sup. Ct., 460. In the latter case, an action was brought upon a claim for services rendered by counsel for the Board of Supervisors, without submitting the claim to the Board, to be settled and allowed. The court held that the action would not lie. See the case of Lyell vs. The Supervisors of Lapier County, 6 McLean, 446, where the court decided that an action could be maintained upon a county order, in the United States Court, when the sum in controversy, and the character of the parties, gave the court jurisdiction.

It was contended, that since, in this case there was no money in the county treasury, with which to pay the orders sued upon, the respondent's remedy was by mandamus to compel the county board of supervisors to raise by taxation a sum sufficient to pay them. Whether a -writ of mandamus would lie under such circumstances, admits of some doubt; hut it is not necessary to decide the point in this case. As a genera] rule, a party will not be entitled to a writ of mandamus when he has any other legal remedy; and if our view of the statute be correct, he may bring his action upon the county order, and recover judgment. As an argument to show that the action would not lie upon the order, it was suggested that when a party obtained his judgment, he was not in a much better position, so far as obtaining his money was concerned, than when he held the order. But this is a mistake, as section 24 gives a party obtaining ajudgment against a county, a decided advantage over one holding a.county order. In a certain contingency, he can have execution upon his judgment.

We think these observations sufficiently dispose of the questions in this case. The judgment of the Circuit Court is affirmed.