Supervisors of Jackson County v. Supervisors of La Crosse County

13 Wis. 490 | Wis. | 1861

By the Court,

PAINE, J.

By an act of tbe legislature, approved Oct. 14th, 1856, the town of Bristol was detached from Jackson county and annexed to tbe county of La Crosse. By another act, at the next session, approved March 3d, 1857, it was restored to Jackson county. But in the mean time tbe treasurer of that town bad paid to tbe treasurer of La Crosse county the amount of state and county taxes collected in that town for the year 1856. In 1858 a further act was-passed, requiring tbe treasurer of La Crosse county to pay over to tbe treasurer of Jackson county the amount so It provided that in making this payment the should assign the outstanding certificates of sale of lands for taxes in that town for that year, remaining in the possession of La Crosse county, which should be received at the amounts for which the lands were sold; and that the balance should be paid in money.

The complaint in this action is founded upon this latter act. It states the provisions of it, states the amount of state and county tax paid by the town treasurer to the treasurer of La Crosse county, and then avers that the latter had been requested by the treasurer of Jackson county to comply with the provisions of the statute, and had refused to do so. The complaint demanded judgment against La Crosse county for the sum of $891,08, that being the amount of money actually paid over by the town treasurer, together with the amount of the delinquent list returned by him.

The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action. The demurrer was overruled, and from that order this appeal was taken. The appellant contends that the act was unconstitutional, because it purported to create an indebtedness from the county of La Crosse to the county of Jackson, which it is claimed the legislature cannot do. It is undoubtedly true that the legislature could not, by a mere legislative act, create an indebtedness from one county to another. But if the money had been paid by mistake, growing out of hasty legislation in annexing a town in one county to another, without making any provision as to the effect of the change, it would be competent for the legislature to provide in what manner the mistake should be corrected. It would be very dangerous indeed to deny this power. And it is assumed by the counsel for the respondent that this act was of this character. They say that it was the duty of the treasurer of the town to. pay the taxes and to return the delinquent list for the year 1856, to the treasurer of Jackson instead of La Crosse county. There are many considerations strongly tending to support this conclusion. The act annexing the town to La Crosse county was not published, and consequently did not take effect, until November 18th, 1856 (Gen. Laws 1856, cbap. 145). Before tbat time tbe assessment roll of tbat town would bave been returned to tbe pervisors of Jackson county. Before tbat time tbe state tax for tbat year would bave been apportioned, and tbeir respective portions charged to Jackson and La Crosse counties, by tbe state. Sec. 42, cbap. 15, B. S. 1849. Before tbat time tbe annual meeting of tbe two county boards would bave occurred, at wbicb they were required to equalize tbe taxes, and apportion among tbe various towns in tbe counties, tbeir respective portions of tbe state and county taxes for tbat year. It is to be assumed, therefore, tbat no portion of tbe state or county tax of La Crosse was apportioned to tbe town of Bristol, and on tbe other band, that its proper portion of tbe state and county tax of Jackson county was apportioned to it. Now, if, after all this was done, tbe annexation of tbat town to La Crofcse required tbe payment of its state and county tax to tbe treasurer of tbat county, it is evident tbat La Crosse county would bave an amount of state tax greater than tbat charged to it by tbe state, while there would be a corresponding deficit in tbe state tax of Jackson county. La Crosse would bave a surplus of county tax beyond what it bad levied; Jackson would be minus tbe like amount of its county tax. These considerations would seem to show, tbat in a case of such annexation, where no provision was made as to its effect upon tbe taxes of tbe town, its state and county tax should be paid to tbe treasurer of tbat county for wbicb they were apportioned. And if this is so, La Crosse county would be liable to Jackson county for tbe money actually paid by tbe town treasurer, as for money bad and received. But even upon this assumption, tbat tbe taxes were improperly paid, and tbe delinquent list improperly returned by tbe town treasurer to the treasurer of La Crosse, does not tbe question arise whether tbe sales by tbe latter of lands in tbat town, were not void ? And if void, would not tbe county of Crosse be liable to refund tbe money paid on each certificate' to tbe purchaser, instead of being liable to pay it to Jackson county ? And if tbe certificates held by La Crosse county •are void, could tbe failure of tbe treasurer to assign them, in compliance witb tbe statute, create any liability against county, even assuming that sueb failure would create lability if they were valid ? These are questions which have suggested themselves, and which it may be necessary to determine before the rights of the parties are finally settled. But the conclusion to which we have come upon the question now presented, makes it unnecessary to determine them here.

That conclusion is, that if the act in question furnished the respondent any additional remedy, it would be by mandamus to compel the treasurer to perform the acts which it enjoins upon him. But if the respondent seeks to maintain an action against La Orosse county, it must do it in the manner and subject to the conditions prescribed by law. These are, that no action shall be maintained against a county, on any claim other than a county order, until such claim shall have been first presented to the board of supervisors for allowance. If the supervisors act upon the claim, their decision is final, unless appealed from, and an action can be brought only in case they neglect to act, or consent to an action being brought. R. S. 1858, chap. 18, secs. 42, 43.

This result would seem to follow from the view taken by the respondent’s counsel of this statute. They say in their brief: “ The act of the legislature in question does not in any manner change, modify or enlarge the remedy before existing for the recovery of any indebtedness of the county of La Crosse to the county of Jackson. It merely provides the manner in which it may be paid when ascertained, whether ascertained by action at law, arbitration, or by mutual accounting between the two counties. This it is submitted the legislature had full power to do,” &c. If this is so, and the act did not “ change or enlarge or modify the remedy before existing,” they are bound to present the claim to the board before the action can be sustained. The cojnplaint, therefore, showed no right to bring the action, and the de ■ murrer should have been sustained. The order overruling the demurrer is reversed, with costs, and the cause remanded for further proceedings.