State ex rel. Board of School Directors v. Nelson

105 Wis. 111 | Wis. | 1899

Dodge, J.

1. The appellants object to the judgment on the ground, among others, that the money raised by taxation and paid over to the county treasurer did not belong to the school district relator, but, if not to the county, to the town. The question of ownership of moneys thus coming into a public treasury is not easy. The whole transaction, strictly speaking, was unlawful and by mistake; but the taxpayers from whom the money came are probably not in position to reclaim it, having paid voluntarily. Whether that be so or not, they are not now seeking to recover it. We may look upon it as a donation by them, and need only consider'which of these corporations is the donee. The county board had no power or authority to levy upon the town of Worcester any school tax for the use of the county. It did, however, have both the power and the duty, bjr secs. 1074,1075, R. S. 1878, to include in its resolution levying the county taxes, and in the certificate of those taxes to the town clerk, a direction to raise a certain amount of school taxes for the use of the school district, a distinct corporation. We have no doubt that the act done by the county board and county clerk was intended as a performance of this duty, and that the mis-description of the item as a “ county school tax ” was a mistake merely, so that the act really done was that which the statute commands, namely, the direction above described. This being so, we must consider the acts of the town officers, as done in compliance with that direction, and, while irregular, as amounting merely to extension upon the tax roll and collection of the amount directed for the purpose prescribed by law, namely, for the use of the school district. The ensuing confusion and mistakes, whereby the town treasurer, lawfully holding this money for the school district, paid it. over to the county treasurer who, under the same mistake, received it and carried it into the county treasury as county money, cannot change the rights previously existing. As between public corporations and officers, title and ownership to such a fund can be neither gained nor lost by its transfer-through mistake from one treasury to another, its identity-being always defined and recognized (Wis. Cent. R. Co. v. U. S. 164 U. S. 190, 212); and the corporation to which it belongs can always recover it from that unlawfully or by mistake receiving and retaining it. The latter gains no title, and holds merely for the true owner. We conclude, therefore, that the fund in question belongs to the school district, and should be in the custody of the town treasurer for its use..

2. The question next arising is whether the relators are-entitled to enforce their rights to the money in question by mcmdamus against the county treasurer. Conceding that their right to receive this money is clear, still, to justify this procedure, it is essential that an express duty to perform the demanded act be imposed on the respondent by law, and that relators be without clear, adequate, and complete remedy by ordinary action. High, Extr. Leg. Rem. §§ 9, 10, 15; State ex rel. Wolff v. Sup’rs of Sheboygan Co. 29 Wis. 79; Fox Lake v. Fox Lake, 62 Wis. 486, 492; Board of Education of South Milwaukee v. State ex rel. Reed, 100 Wis. 455; In re Blake, 175 U. S. 114. In the case at bar the respondent received these moneys for the county under the mistaken idea of all parties that they had been collected for and belonged to it. They have passed into the county treasury, and become part of the county moneys in the custody of respondent. State ex rel. Bell v. Harshaw, 76 Wis. 241. The right of the relators, therefore, is one against the county, is based on implied contract to repay the money had and received to the relators’ use, and would support a direct legal action, but for the statute requiring claims against counties to be presented to the county board, and brought into court only by appeal. That procedure is, however, the entire equivalent of an action at law, and constitutes a clear and adequate remedy, and mcmdamus should not issue to accomplish the same purpose. State ex rel. Wolff v. Sup’rs of Sheboygan Co., supra; Board of Education of South Milwaukee v. State ex rel. Reed, supra; Kings Co. v. Johnson, 104 Cal. 198, 201; Merrill, Mandamus, § 17.

This view does not ignore the rule of another line of decisions which hold that after a public corporation has acted «favorably upon a debt, so that its nonpayment is due solely to the failure of some officer to perform some purely ministerial act expressly enjoined upon him by law, as the signing of an order by mayor or clerk, or even the manual payment of the money by the treasurer^ that specific act may be compelled by mandamus. State ex rel. Treat v. Richter, 37 Wis. 275; Sharp v. Mauston, 92 Wis. 630; State ex rel. C. Reiss C. Co. v. Born, 97 Wis. 542; Gutta Percha & R. Mfg. Co. v. Ashland, 100 Wis. 232. These cases do not'deny, but recognize, that generally the enforcement of a debt or contract right to money against a public corporation must be by the ordinary processes of an action; but when all the purposes of such an action are accomplished by the voluntary act of the corporate body in conceding the debt and ordering'payment, and the only obstacle is the refusal or neglect of some officer to perform a ministerial duty, the creditor need not be driven to take the steps which would otherwise be necessary to establish his right against the corporation, but may have a writ against the individual officer to compel performance of the act enjoined on him by law. ' The writ serves, not as a substitute for a plain legal action, but as a supplement removing some obstacle by compelling performance of some ministerial act, expressly enjoined by law, necessary to render establishment of legal right possible or effective. Kraft v. Madison, 98 Wis. 252. Eurther than this, there is no specific duty prescribed by law on the part of the respondent to pay back this money. It is not in his possession as an individual free to act, but is in the possession of the county, of which he is only one officer, and with certain duties, which do not include the payment of any moneys of the county until that corporation has authorized their payment by a proceeding carefully prescribed. The county board must by its vote authorize the payment, and that authority must be certified to the treasurer by the chairman and county clerk before any duty or authority vests in him to pay. Sec. 715, Stats. 1898; State ex rel. Mulholland v. Manitowoc County Clerk, 48 Wis. 112; State ex rel. Bell v. Harshaw, 76 Wis. 241; Dubordieu v. Butler, 49 Cal. 512, 517. We con-elude, therefore, that a case is not here presented to entitle these relators to the extraordinary and summary process of mcmdmrms against the county treasurer.

By the Court.— Judgment reversed, and cause remanded with directions to enter judgment denying an imperative writ.