State ex rel. Treat v. Richter

37 Wis. 275 | Wis. | 1875

Ryan, C. J.

The authority and duty to audit the relator’s account, and to order its payment, were in the board of supervisors of the county. R. S., ch. 13, sec. 27; Laws of 1868, ch. 160. It was the duty of the county clerk to make and sign the proper county orders for the amount allowed by the board to the relator. R. S., ch. 13, sec. 57. It was the duty of the chairman of the board to countersign the orders. Id., sec. 36. The duty of these officers to sign and countersign the orders was purely ministerial. State v. Winn, 19 Wis., 304.

It appears that the relator has received county orders for part of the amount allowed to him by the board, but not for the whole; and that the appellant refuses to sign orders for the balance unpaid to the relator. It further appears that the county clerk, the appellant or his predecessor, assumed to make and deliver orders for the balance due to the relator, without authority from the relator, to another person, the clerk being of opinion that such other person was entitled to them, as between him and the relator. And the appellant sets up the same defense against a peremptory writ.

We cannot settle the equities between the relator and the person who has received orders for the balance due by the county to the relator, in this proceeding. And certainly the appellant could not. The county clerk whollj^ mistook his office, its powers and duties, when he assumed to sit as chancellor between those parties, and to distribute the county orders amongst them according to his judgment of the equities between them. The appellant makes the same mistake in setting up the same equities as a defense to the writ. He has no concern with them. Neither has he anything to do with the equitable interest of other parties with the relator in the account for which the allowance was made. The allowance was to the relator alone. That was conclusive to the county clerk, and he had no authority to look behind it. His duty was simple and peremptory, purely ministerial, to make, sign and deliver the orders to the person to whom the allowance was made by the board. State v. Winn, supra.

The consequences of the issuing of orders on the relator’s allowance to another party are not before us. That is a question between the county and the officer who did it, with which the relator has no concern.

It is very plain that the county, that is in effect, the board of supervisors, is not a necessary party here. The board has performed its duty in the premises, and could not properly be called upon to do it again. It had imposed a duty on the clerk, of which it is the function of the court, not of the board, to enforce performance.

It does not appear that the chairman has made any objection to countersign the proper orders. It may be doubted whether he could so refuse to do so, as to subject him to mandamus, before the orders are made and signed by the clerk. R. S., cb. 13, see. 36. As the case appears in the record, he is certainly not a necessary party.

By the Court. — The judgment of the court below is affirmed.