169 Wis. 208 | Wis. | 1919
The basic question presented in the case is whether the penalties which are added by law to drainage assessments when they are allowed to remain unpaid and go to tax sale belong to the county or to the drainage district. The trial judge held that they belonged -to the drainage district, and we think his conclusion correct.
The statutory provisions governing the formation and management of drainage districts are of considerable length and it would hardly be useful to attempt to set them forth in detail; they will be found in the Statutes, beginning with sec. 1379 — 11 and running to and including sec. 1379 — 40. The general plan is not complicated. On application of a majority of the adult owners representing at least one third in
Turning now to the statutes governing delinquent general taxes, we find that under sec. 1090, Stats., taxes not paid before the last day fixed by law for payment without penalty are subject to a penalty of two per cent., which the local treasurer is required to collect; also that, under sec. 1112, Stats., if the tax remains unpaid, this two per cent, is included with the tax in the statement of unpaid taxes returned by the local treasurer to the county treasurer; also that, under sec. 1129, after the return is made to the county treasurer any person wishing to discharge a delinquent tax so returned must pay, in addition to the two per cent, before mentioned, an additional penalty in the shape of interest at twelve per cent, per annum from the first day of January previous.
There is nothing in the drainage act in conflict with these provisions, hence they apply to the collection of drainage assessments. These penalties have been regularly collected by the county treasurer and they make up the amount in dispute in this action. They are added to and become a part of the assessment by virtue of the statutory provisions referred to.
Returning to the drainage act, we find that by sec. 1379 — 25a the county treasurer is required to keep a separate account with the drainage district, in which he credits the district with (a) all sums received in payment of drainage assessments, (b) all sums received in payment á$ principal on sale of drainage certificates at the tax sale (except where the sale is'to the county), (c) all sums received for principal and interest on sale or assignment of such certificates after
With regard to these provisions the trial judge very tersely and correctly says in his opinion: “The word ‘face,’ used in sub. (d), is identical in meaning with the word ‘principal’ used in sub. (b) and sub. (c), and the ‘interest’ mentioned in sub. (d) is the interest from the date of the sale to the county up to the date of the deed.”
It seems to us so clear that the word “principal” covers the two per cent, and twelve per cent, penalties in suit as well as the amount of the assessment itself that we do not regard discussion of the proposition as in any respect useful. When the land is sold for the assessment and the penalties, that gross sum is manifestly the principal of the certificate, and from that time interest begins to run. It follows that the sums here in dispute originally belonged to the drainage district and not to the county. This result is in entire harmony with those sections of the drainage act above referred to, which provide in substance that in all its transactions relating to the collection of drainage assessments the county acts in a trust capacity only for the benefit of the drainage district. It is also in accord with the cases in this court which hold that where, under the ordinary provisions of law, the machinery of taxation is used to collect assessments for street improvements, neither city nor county is acting for itself or in its own interest, but simply in the interest of the contractor or his assignee as a collecting agent or trustee. State ex rel. Donnelly v. Hobe, 106 Wis. 411, 82 N. W. 336; State ex rel. Bank of Commerce v. Bell, 111 Wis. 601, 87 N. W. 478.
The appelant contends that, because the statutes provide that the penalties above referred to accruing in the course of the collection of general taxes shall be collected by the county for its own use (secs. 1114, 1135, and 1144, Stats.), the pen
It is claimed (1) that mandamus is not the proper remedy, (2) that the action is barred because it appears by stipulation that in November, 1916, the petitioners filed a claim against the county for these sums which was disallowed by the board and no appeal taken from such disallowance, and (3) that the action is barred by the statute of limitations.
Mandamus is the proper remedy to compel a public officer to perform a duty arising out of his office which is presently due to be performed, and where other remedies, if any, are inadequate. State ex rel. Bautz v. Harper, 166 Wis. 303, 165 N. W. 281.
If, as alleged in the petition and alternative writ and admitted by the motion to quash, the county treasurer still has these moneys in-his possession, there is no remedy against the county therefor. State v. Milwaukee, 145 Wis. 131, 129 N. W. 1101. The only adequate remedy is by mandamus to compel the treasurer to perform his statutory duty, namely, to turn the funds over to their owner, the drainage district, as required by sub. 2, sec. 1379 — 25a, supra. It follows necessarily that upon the facts as stated in the petition the disal-lowance of the claim filed against the county is of no moment, because the district had no claim against the county unless the county had used the money for its corporate purposes. State v. Milwaukee, supra.
The question whether the statute of limitations applies to actions of mandamus is one on which there is much conflict in the decisions. Merrill, Mandamus, § 314; 18 Ruling Case Law, p. 334, § 285; State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549, 4 N. W. 641. But the question is
It seems that long and unreasonable delay in commencing the action will be ground for refusing relief, especially where such delay has been prejudicial to the respondent’s fight. 18 Ruling Case Law, p. 335, § 286. But this question must depend on the facts of the particular case, and we do not feel that we ought to hold the delay unreasonable as a matter of law. It may be that it will appear when the return is made and evidence taken that the delay was entirely excusable.
By the Court. — Order affirmed.