Stahl v. O'Malley

39 Wis. 328 | Wis. | 1876

RyaN, O. J.

Tbe statute makes it tbe duty of tbe town clerk to deliver to tbe town treasurer a copy of tbe assessment roll of tbe town, witb tbe several amounts of tbe several taxes calculated .and. carried out in separate columns, witb tbe warrant of tbe town clerk attacked thereto, commanding tbe town treasurer to collect tbe tax. Tbe warrant specifies the amount of state tax which it commands the town treasurer first to pay to tbe county treasurer, specifies the amount of town tax which it commands tbe town treasurer to retain; commands the town treasurer to pay the balance of- tax collected to the county treasurer; and commands tbe town treasurer to make return of tbe warrant witb tbe tax roll to tbe county treasurer. Ch. 18, R. S., secs. 60, 61; ch. 130 of 1868, secs. 31, 33.

It appears by tbe finding of tbe court below, that there were discrepancies between tbe warrant proper and tbe tax roll proper. Tbe several items of state tax carried out in tbe tax roll, if added together, appeared to exceed tbe amount of state tax specified in tbe warrant proper; and tbe several items of town tax in tbe tax roll, to exceed tbe amount of town tax specified in tbe warrant proper. These discrepancies were apparent, by mere addition of tbe items in tbe tax -roll, on tbe face of tbe warrant.

But tbe town treasurer bad no official knowledge where tbe mistakes were; whether in tbe sums specified in tbe warrant proper, or in tbe calculation and carrying out of the items of tax in tbe tax roll. Both formed part of tbe process which it was bis duty to execute, were of equal authority, and equally binding on him. Tbe blunder of tbe town clerk was apparent, but there was no presumption where be had made it.

It appears by tbe finding .of tbe court below that tbe mistakes were in tbe sums specified in tbe warrant proper, and not in tbe items of tax carried out in tbe tax roll. This was tbe judicial determination of tbe court, surely within its authority in a proper case. But tbe town treasurer as surely bad no such authority.

And yet this is precisely what lie undertook to do. His office was purely ministerial. . Iiis sole authority was to execute tlie warrant, just as it was written. He had no jurisdiction to investigate mistakes in it or to correct them. He wholly mistook the nature of his office, its powers and duties, when he assumed to do so. State v. Winn, 19 Wis., 304; State v. Richter, 37 id., 275.

The warrant, just as written, was his full protection against all such mistakes. Sprague v. Birchard, 1 Wis., 457; McLean v. Cook, 23 id., 364. And his duty was to execute it as he received it, whether the amounts in one place were too much or in the other too little. Eor this he was not responsible. Bullwinkel v. Guttenberg, 17 Wis., 583. The protection and the duty are correlative: both limited by the letter of the process.

If the town treasurer had discretion'to disregard the sums specified in the warrant proper, substituting his additions of the tax roll, he had equal discretion to disregard the items carried out in the tax roll, and reduce them to correspond with the sums specified for state and town tax. The statute entrusts no such discretion to town treasurers. They are not at liberty to look behind their process. '

It would be an intolerable evil if ministerial officers could sit judicially on valid process in their hands for execution, and assume authority to correct mistakes which they assume to discover in them. The good order of society requires that they should have no discretion or responsibility, but should obey their process with absolute submission, secure in doing so. And whenever they substitute judicial discretion for ministerial obedience, they mistake their authority and forego their protection. See State v. Richter, supra.

Whatever in this case might have been the consequence of the town treasurer’s obedience to his process, he had nothing to do with it. He was not answerable for the blunder of the town clerk. And the consequences were for the town and the county to meet, not for tbe town treasurer. lie bad no duty or discretion outside of bis process. And this is a lesson wbicb ministerial officers cannot learn too often or too well.

We must therefore reverse tbe judgment in favor of tbe respondent, for plain violation of bis ministerial duty. Tbe record does not sufficiently disclose tbe facts to say wliat tbe judgment against tbe respondent should be. We therefore order a new trial in tbe court below. Dupont v. Davis, 35 Wis., 631.

By the Cowt. — Judgment reversed.