The following opinion was filed October 8, 1929:
It appears without dispute that the city treasurer of the city of Sheboygan collected $66,360.50 in the tax levy of the county of Sheboygan for the year 1926, and that he refused to turn the same over to the county treasurer, according to law, on the theory that .the amount of the tax was illegally authorized and levied by the county. The city of Sheboygan sought to test the question of the illegal levy by certiorari, but this court held that the city of Sheboy-
The city treasurer collected the tax and deposited the funds with other funds collected and held by him for the city of Sheboygan, in the city depositories, where they now are.
It appears without dispute that, according to custom, such money will only be paid out of the depositories upon the signature to an order-check of the mayor, city clerk, comptroller, and city treasurer. •
Upon a petition setting forth the facts, the circuit court issued an alternative writ, tо which the defendants made return, and the relators filed a reply to such return. The court thereupon decided that there was no issue of fact to be determined, and made and filed its findings of fact as conceded by the pleadings.
Under sec. 74.15, Stats., the city treasurer shall pay to the county treasurer the sum so directed to be paid in his warrant to collect, as provided by law, and under sec. 74.22, Stats., if he fails to make payment as provided by law, he is subject to the penalty therein named. There can be no question that it is the clear legal duty of a city treasurer to pay over to the county treasurer the amount of moneys collected by him for county purposes. Appleton v. Outagamie County,
It appeared that the common council of the city of She-boygan passed a resolution directing the treasurer not to pay the funds оver to the county treasurer, and the other city officers refuse to sign the order-checks accordingly.
The duties of the city treasurer are statutory. Under the statutes his duty was to turn this money over to the county
But it is said that the relators have a specific, adequate remedy.under sec. 74.22, Stats., which gives the county treasurer the right to bring an action against the city treasurer on his official bond, to recover the funds so withheld. Ordinarily this would be an adequate remedy, and quite generally, where a statute prescribes a remedy, it is held that such remedy is exclusive, although the authorities are not uniform to that effect. But it aрpears in this case that the city treasurer gave no bond to the county; on the other hand, the only bond attempted to be given was one signed by the mayor, city 'clerk, and comptroller, attempting to bind the city of Sheboy-gan as surety for the city treasurer to the county. Sec. 70.67, Stats., provides that the city treasurer shall give a bond with surеties to the county treasurer. No such bond was given. Clearly, this was ineffective to bind the city, as the city had no authority to become a surety for its city treasurer. 44 Córp. Jur. p. 75; 19 Ruling Case Law, p. 1062, §351; 2 Dillon, Mun. Corp. (5th ed.) p. 1232, § 814. The document was not signed by the city treasurer. It further appears that the city treasurer is not financially responsible for the amount of the fund in question. Such being the facts, it very clearly appears that the county has no other adequate and efficient remedy except by mandamus.
“To exclude resort to mandamus on the ground that the relator has another remedy, such remedy must be an adequate one and well adapted to remedy the wrong complained of; if it is inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. Another remedy*527 tedious and not so well adapted to the nature of the case as that by mandamus will not oрerate to prevent resort to the latter remedy, and it is said the other remedy must be one' competent to afford relief upon the very subject matter involvеd, that it must not only be adequate but specific.” 18 Ruling Case Law, p. 132, § 45.
If we apply these principles to the facts here presented, it seems clear that the writ should hаve issued. The city treasurer had failed to perform his clear legal duty to turn over to the county the funds collected by him for the county. The statute fixing the duty prescribed a penalty against the treasurer personally for failure to perform such duty, and provided that such penalties and the principal might be collected in an action on the treasurer’s bond. Here, however, the treasurer had given no bond and no such action could be maintained on the bond, and the treasurer is not financiаlly responsible. It therefore appears that the statutory action is not efficient or adequate, and mandamus is the proper remedy.
Our attention is called to the case of Rinder v. Madison,
“The relators cannot rely upon the fact that similar actions have been maintained in which the right of the municipality to prosecute such actions was not questioned, because the*528 question now under consideration was neither raised nor сonsidered in those cases. Such decisions are not authority either way upon this question.”
We adhere to that ruling. We have not overlooked State ex rel. McCurdy v. Tappan,
The respondents earnestly contend that the county should not be permitted to profit by its own wrong in levying an illegal tax, citing Stamper v. Hopkins,
The application for the writ in this case seeks to compel the payment by the city treasurer of the penalties provided by statute. These penalties are the personal liabilities of the city treasurer and do not lie against his successor in office. They are statutory and the remedy therefor is statutory, which remedy may only be pursued as provided by the statute imposing them. However, the writ may issue as to the princiрal sum, and the penalties may be disregarded. 38 Corp. Jur. p. 932. It has long been held in this state that a proceeding by mandamus is essentially a civil action, and the rules of practice as to civil actions apply. State ex rel. Milwaukee County v. Buech,
By the Court. — The judgment of the circuit court is reversed, with directions to issue a peremptory writ of mandamus as here indicated.
A motion for a rehearing was denied, with $25 costs, on December 3, 1929.