State ex rel. Wolff v. Board of Supervisors, 29 Wis. 79

State ex rel. Wolff v. Board of Supervisors

29 Wis. 79 | Wis. | 1871

Lead Opinion

Cole, J.

It seems to us that the relator took a very correct view of the law, and of his duty to refund the money due upon *82the tax certificates mentioned in the relation when they were presented to him for payment. The statute is very clear and explicit on the subject. Section 26, chapter 22, Laws of 1859, enacts that after a certificate shall have been issued at a tax sale, if the clerk of the board discovers “ that for any error or irregularity, the lands sold ought not to be conveyed, he shall not convey the same, and the county treasurer shall, on demand, refund the amount paid therefor on such sale, and all subse-' quent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of seven per cent, per annum.” This enactment makes the county liable for the amount due upon tax; certificates, where error or irregularity have intervened in the proceedings so as to invalidate the sale, and it imposes upon the treasurer the clear duty of refunding the money with interest out of the county treasury. That this is a correct view of the force and meaning of this provision of the statute seems to us very plain. The amounts refunded, therefore, by the treasurer to the holders of irregular and defective tax certificates, were moneys legally and properly paid by him for the use of the county. And the county, upon every principle of right and justice, should allow the relator credit for payments thus made for its benefit.

It appears, however, that the county board refused to allow •the payments made by the relator upon the tax certificates, upon the ground and for the reason that the holders of the certificates had lost their claim to have the amounts refunded by lapse of time. It is said that tax deeds were barred upon all these certificates under chapter 112, Laws of 1867, as amended by chapter 56, Laws of 1868, and therefore, the liability of the county to refund the moneys due upon them was gone. It is true these statutes, except in certain cases which need not be referred to, limit the period within which a tax deed may be issued upon a tax certificate to six years from the day of the tax .sala But they do not profess or attempt to limit the lia*83bility of the county to refund moneys due upon defective tax certificates to six years. • There is no such exception in the law of 1859, and for the most obvious reasons, the courts have no right to incorporate such an exception in that statute by construction; for, to do so, would be nothing less than assuming the power to prescribe a limitation to a liability, when the legislature has not seen fit to enact one. The liability of the county to refund, under the statute of 1859, is absolute, and is not made to depend upon the fact that a tax deed is not barred upon the certificate. And the county board were clearly wrong in supposing the county was no longer liable to refund the moneys on these defective tax certificates because tax deeds were barred upon them by the statutes of 1867 and 1868 just cited; for the only object and effect of these enactments are to limit, with certain exceptions, the time for issuing tax deeds upon tax certificates to the period of six years from the day of sale, applying of course to cases where there was no error or irregularity in the proceedings which invalidated the sale. The certificates mentioned in the law of 1859 are defective certificates, where, on account of some informality, the lands sold “ought not to be conveyed.”

And, in respect to those certificates, the legal obligation of the county to refund the amounts paid thereon and interest is absolute and unqualified, and the courts clearly have no authority for making an exception to,such liability, where the legislature has made none. So that we think the county board was manifestly wrong in refusing to allow the relator’s account for moneys refunded by him on the tax certificates mentioned in the relation. But, while this is so, we do not see how a mandamus can be granted to compel the board to audit and allow this account without a violation of well settled principles of law; for we suppose the doctrine to be elementary that a mandamus will not be granted where the party has a clear, specific remedy by an action. This principle has been so frequently recognized and acted upon by this court that the cita*84tion of decisions in its support is deemed unnecessary. It is only in cases where there is a specific legal right to be enforced, or where there is a positive duty to he performed, and when there is no other adequate legal remedy, that the writ of mandamus issues. See cases cited in Simmons, Dig., under the head of “Mandamus.” Perhaps the ease of the State ex rel. Van Vliet v. Wilson et al., 17 Wis., 687, goes as far to sustain this application as any one which can be found in our reports, and yet it hardly supports it. There the writ was granted to compel the town board to proceed and audit the amount allowed the relator for damages in laying out a highway over his land. These damages had been assessed by commissioners under the statute, but the town board refused to audit the claim and to take steps to levy a tax to pay the same with other town -charges. And this court issued a mandamus to compel the town board to proceed and perform this clear legal duty which 'the statute imposed upon them, notwithstanding the fact that the relator had a right of action against the town on the award of the commissioners. And one consideration which had weight ■with the court was that, if the relator should bring his action against the town and recover on the award, he would be in no better condition than he then was, in respect to his claim, and would probably have to proceed, by mandamus, to compel the -town authorities to levy a tax to pay the judgment.

In the present case it appears the relator presented to the county board, at its annual meeting, his account for the moneys refunded by him on those tax certificates. That this was a proper matter to come before the board for examination and allowance, is a very plain proposition. The board has, by statute, power “ to examine and settle all accounts of the receipts and expenses of the county, and to examine, settle and allow all accounts chargeable against such county.” Sub. 2, sec. 27, chap. 13, R. S. The moneys refunded on the defective certificates manifestly constituted a proper claim or demand against the county. "It was money paid out for the use and benefit of the county. *85It-was a claim or demand upon wbicb a sum was due tbe relator from tbe county, and tbe county board were authorized to examine and allow it, by virtue of tbe power vested in tbe board by statute. Stringham v. The Board of Supervisors of Winnebago Co., 24 Wis., 594. Tbe relator, it appears, proceeded upon tbe assumption that these payments constituted proper charges against tbe county, and be embraced them in bis accounts which be presented to tbe board. He was obviously right in so treating these claims. They were just and lawful credits, which tbe board should have allowed him. But tbe board disallowed tbe accounts, upon tbe supposition that these moneys were improperly refunded on tbe tax certificates, and that tbe holders bad lost tbe right to demand tbe sums due upon them by reason of tbe statute of limitations. In this conclusion, as we have said, tbe board fell into an error. Tbe amounts, when paid by tbe relator, were valid subsisting claims against tbe county. Tbe relator could not do otherwise than pay them while be bad funds belonging to tbe county to meet them. But what should be have done when tbe board disallowed these claims or payments made by him? Tbe statute furnished the remedy. “ When any claim of any person against a county shall be disallowed, in whole or in part, by tbe board of supervisors, such person may appeal from tbe decision of such board to tbe circuit court for the same county.” Section 40.

Here was a plain, adequate remedy by action, furnished the relator for the correction of the decision of the board. The statute in the clearest language gave him an appeal to the .circuit court from this determination disallowing those payments. This remedy tbe relator should have adopted instead of applying for a mandamus to correct the erroneous decision of the board. True, his right t.o appeal from the decision of the board has expired, but that fact can make no difference with our determination on this application. He had a plain legal remedy, but the fact that he has neglected to pursue it, and has now lost his right to appeal, constitutes no sufficient ground *86for granting a mandamus. If it did, then the writ should be granted in every case, to correct the erroneous decision of an inferior tribunal, when the aggrieved party has failed to appeal from such a decision within the time allowed by law. It must be apparent that the writ of mandamus has not been awarded for such a purpose, but only where no adequate specific remedy by action exists. But, although the relator may have mistaken his remedy, and may havé lost his right to appeal from the decision of the county board disallowing these payments, still it is not to be supposed the board — when informed of this determination, and that those payments were properly made — will any longer refuse to allow them in their settlement with him. It would, as it appears to us, be morally wrong for them to do so, and inconsistent with that high and honorable conduct which should regulate the action of such a body.

But, as this case now stands, we have no other alternative than to affirm the order of the court below.

Dissenting Opinion

LyoN, J.,

dissenting. I fully concur in the opinion that the moneys paid by the relator to the holder of the irregular and defective tax certificates were legally paid, and that the board of supervisors should have settled and adjusted his account upon the basis that the same were legal payments. I agree, also, that, if the relator had the right of appeal to the circuit court from the determination of the board, he cannot have a mandamus to compel the board to reverse its action in that behalf.

But I dissent from the proposition that the relator had the right of appeal from the determination of the board of supervisors refusing to settle and adjust his accounts on that basis. If he had such right, it must necessarily have existed by virtue of some statute, and in my opinion the statute, which gives the right of appeal from the decisions of the board in certain cases, does not extend to cases like the one under consideration. Rev. Stats., chap. 18, sec. 40.

*87Section 2.7 of the same chapter gives the hoard of supervi1 sors power “ to examine and settle all accounts of the receipts and expenses of the county; and to examine, settle and allow accounts chargeable against such county, and, when so settled, they may issue county orders therefor, as provided by law.”

I understand that this provision refers to two separate and distinct classes of accounts, to-wit: 1st. Accounts of the receipts and expenses of the county ; that is, the accounts of the treasurer or any other officer or person, who has received or disbursed the funds of the county, in respect thereto. These are to be examined and settled, and, when settled, the transaction is at an end. 2d. Accounts chargeable against the' county, which are the claims of individual creditors of the county, These are to be not only examined and settled, but in addition thereto are to be allowed or disallowed, and if allowed, county orders are to be issued therefor.

The distinction between these two classes of accounts runs through the statute. For example, the provision contained in section 87, requiring certain accounts to be verified by affidavit, evidently relates to the second class alone. It will not be claimed, I apprehend, that the board could lawfully refuse to settle with the treasurer merely because he had failed to verify his account by affidavit. Section 128 requires the production of books and vouchers with the treasurer’s account of county funds received and disbursed by him, and not an affidavit. This will serve as an example of the distinction which the law makes between these two classes of accounts.

If such distinction does, in fact, exist — if the duty and power “ to examine and settle the accounts of the receipts and expenses of the county,” isnot identical with the duty and power “to examine, settle and allow accounts chargeable against such county,” but is a separate and distinct duty and power, to be exercised in accordance with provisions of law specially and peculiarly applicable thereto' — then it seems to me perfectly clear that the right of appeal from the decision of the board is *88confined by tbe statute to tbe latter class of accounts, and has no application whatever to accounts “ of tbe receipts and expenses of tbe county.” For sucb right of appeal is only given “when any claim of any person against a county shall be disallowed, in whole or in part, by tbe board of supervisors,” and is not given in a case like tbe present, where tbe board bas refused to settle, upon a just and legal basis, tbe account of a disbursing officer of tbe county, in respect to tbe county funds disbursed by him according to law.

But, an elaborate argument of tbe question will serve no useful purpose, and I content myself with this brief statement of tbe grounds upon which I dissent from tbe opinion of my brethren on tbe point under consideration.

It would follow from these views that a writ of mandamus, to compel tbe board to settle and adjust tbe account of tbe relator, on tbe basis that tbe county funds paid by him to tbe holders of tbe defective tax certificates, were legally paid, and that tbe county was bound by sucb payments, should have been awarded. . I am of tbe opinion, therefore, that tbe order of tbe circuit court refusing to award tbe writ should be reversed.

By the Court — Tbe order is affirmed.