State ex rel. Mulholland v. County Clerk of Manitowoc County

48 Wis. 112 | Wis. | 1880

Lyost, J.

The two judgments in form, although separately signed by the judge, are in substance and effect but one judgment, and but one appeal therefrom will lie. We must therefore dismiss one of these appeals. Young v. Groner, 22 Wis., 205; Mead v. Walker, 20 Wis., 518. The judgment really is, that a peremptory mandamus issue to the appellant, with costs to be taxed against him. Upon the appeal from the whole judgment we must necessarily review that portion which awards a peremptory writ of mandamus; and the first appeal, which is confined to that portion of the judgment, is therefore superfluous.

On the merits of the case, the controlling question is: Has the county clerk power, and is it his duty, to issue the county orders which the relator seeks in this proceeding to compel him to issue? The question is easily answered. When the clerk refused to issue the orders demanded, the law was that “ such clerk shall not sign or issue any county order except upon a recorded vote of the board of supervisors authorizing the same.” R. S. 1858, ch. 13, sec. 59 (Tay. Stats., 308, § 85). Such is still the law. R. S., 249, sec. 709, subd. 3. See, also, Tay. Stats., 297, § 35, subd. 2; id., 301, § 49; R. S., 244, sec. 686. In the present case, not only was there no vote of the board of supervisors authorizing the clerk to issue the orders demanded by the relator, but he was expressly directed by the board not to do so. It is manifest that, had he issued the orders, he would have violated a positive provision of law.

The signing and issuing of county orders by the clerk, when authorized by the-board of supervisors, is purely a ministerial duty. State ex rel. Treat v. Richter, 37 Wis., 275. Unless he has such authority, he cannot lawfully sign and issue them, and a mandamus to compel him to do so will not be granted.

It is scarcely necessary to add that the resolution, of the board at the close of the May meeting, authorizing the chairman and clerk “ to issue county orders to the several persons to whom claims were allowed, in accordance with the action of the board ” at that meeting, was not a direction to issue orders to the relator for the full amount of his claim allowed by the board. The special direction given in his case was not affected by the resolution, and orders were issued to him “ in accordance with the action of the board.”

We do not determine on these appeals what is the remedy of the relator, if he has a valid claim against the county; we only determine that on the case made by the record before us he has no remedy by a proceeding against the county clerk.

The appeal from the order awarding a peremptory writ of mandamus is dismissed.

On the appeal from the whole judgment, the judgment must be reversed, and the cause will be remanded with directions to the circuit court to dismiss the proceedings with costs.

By the Court. — So ordered.