Wallace v. City of Menasha

Decision Date07 January 1880
Citation4 N.W. 101,48 Wis. 79
PartiesWALLACE v. THE CITY OF MENASHA
CourtWisconsin Supreme Court

Argued December 17, 1879

APPEAL from the Circuit Court for Winnebago County.

Action to recover damages for the alleged unlawful conversion by the defendant city of certain personal property of the plaintiff.

The facts, as they appear from the pleadings, evidence and findings of the judge, are briefly as follows: The annual tax list of the city of Menasha for 1875 was duly made. The proper warrant to the treasurer to collect the taxes assessed therein, signed by the mayor and clerk, and sealed with the city seal, was appended thereto, and the same was delivered to the city treasurer. Such tax list included state, county school and city taxes to be collected for that year in the city of Menasha. A tax of $ 70.50 was therein assessed against the firm of Kelley & Co. That firm neglected or refused to pay such tax; whereupon the treasurer seized and sold the property described in the complaint, and from the proceeds of the sale satisfied the tax against Kelley & Co. The property belonged to the plaintiff, and was of the value of $ 300.

On these facts the court held that the plaintiff was entitled to judgment against the city for the value of the property, with interest and costs. From the judgment rendered against it pursuant to this determination, the city appealed.

Reversed and cause remanded.

The cause was submitted on the brief of E. Mariner and C. A Hamilton for the appellant, and that of C. W. Felker for the respondent.

For the appellant it was argued, 1. That the levy and collection of taxes by the defendant city is not a corporate act from which it derives special benefit, but is simply the exercise of a public governmental power delegated to it by the state; and for negligence in the exercise of that power defendant is not liable. Cooley's Con. Lim., 517-519; Knowlton v. Supervisors, 9 Wis. 388; Hart v. Bridgeport, 13 Blatchf., 291; Bailey v. Mayor, 3 Hill 539. 2. That the city treasurer is an independent public official, over whose action in the collection of a tax defendant had no control, beyond signing and sealing the warrant issued in the name of the state; that after receiving such warrant the treasurer acted as an officer of the state, under its mandate and not under that of the defendant; and that for this reason defendant is not liable in an action of tort for the treasurer's misfeasance. City charter (Laws of 1874, ch. 127), subch. IV, sec. 6; Cook v. City of Macon, 54 Ga., 468; Williams v. Village of Dunkirk, 3 Lans., 50; Lorillard v. Town of Monroe, 11 N.Y. 392; Bank of Commonwealth v. The Mayor, 43 N.Y. 189; Hayes v. Oshkosh, 33 Wis. 318; Fisher v. Boston, 104 Mass., 87. 3. That even if the treasurer was defendant's agent, defendant is not liable for his willful trespass. Boom v. Utica, 2 Barb., 104; Sherman v. City of Grenada, 51 Miss., 187; Williams v. Village of Dunkirk, supra; Lynes v. Martin, 8 Ad. & El., 512. 4. That a municipal corporation cannot be made liable by ratification for an act of its agent which it did not possess the power to authorize the agent to perform. Boom v. Utica, supra; Hodges v. Buffalo, 2 Denio, 113. And in any case a ratification by a municipal corporation must be positively shown, and cannot be presumed. Sherman v. City of Grenada, supra; Mayor, etc., v. Reynolds, 20 Md., 14.

For the respondent it was argued, that the city is not exempted from liability by the fact that the warrant ran in the name of the state. An execution in justice's court runs in the name of the state, but the party directing its issue and an illegal levy is nevertheless liable. Nor is defendant's liability affected by the fact that the warrant did not direct a levy on this property. The act of the treasurer was within his general authority as an officer; and there is nothing to show that he did not act in good faith, "with an honest view to obtain for the public a lawful benefit," or to take the case out of the rule of Hamilton v. Fond du Lac, 40 Wis. 47; Hurley v. Texas, 20 Wis. 634; Squiers v. Neenah, 24 Wis. 588. The rule is well established in other states. Thayer v. Boston, 19 Pick., 511; Howell v. Buffalo, 15 N.Y. 512-20; Conrad v. Ithaca, 16 N.Y. 158; Weet v. Brockport, N.Y. 161-71; Lee v. Sandy Hill, 40 N.Y. 442; B. & H. Turnpike Co. v. Buffalo, 58 N.Y. 639; Allen v. Decatur, 23 Ill., 272; McCombs v. Council, 15 Ohio, 474; Sheldon v. Kalamazoo, 24 Mich., 383; Wild v. New Orleans, 12 La. An., 15; Dillon on M. C., § 770; Addison on Torts, D. & B.'s ed., 1300. Moreover the city never returned the money, and, in some of the defenses set up in the answer, it alleges that the property was subject to the sale; and it must be held to have thus ratified the act. Hamilton v. Fond du Lac, supra; Dillon, §§ 69, 70.

WILLIAM P. LYON, J.

OPINION

LYON, J.

Doubtless it has very frequently happened that municipal officers charged by law with the duty of collecting the public revenue have, for nonpayment of taxes, seized property belonging to persons not liable to pay such taxes. Many cases of tort, brought against such officers by the owners of property so seized, to recover damages therefor, are probably reported in the books; but we have been referred to no case, and upon most diligent search have been unable to find one, in which an action of tort for such unlawful seizure has been sustained or even commenced against a municipal corporation.

The absence of such cases raises a very strong presumption that the bar everywhere entertain the view that such actions cannot be maintained. This circumstance is not, however, conclusive of the question; for if a case like this comes clearly within the established doctrine of respondent superior, the action must be upheld, notwithstanding the absence of cases directly in point.

To determine, therefore, whether this action can be maintained, resort must necessarily be had to the general principles of law relating to the liability of municipal corporations for the torts of their officers or agents.

That actions sounding in tort will lie in certain cases against municipal corporations, though formerly doubted, is now perfectly well settled. It is to be determined whether this is one of those cases.

The rules of law by which the question of the liability of the city of Menasha, in an action of tort for the unlawful seizure by its treasurer of the property of the plaintiff, is to be determined, are thus stated by Chief Justice SHAW in Thayer v. The City of Boston, 36 Mass. 511, 19 Pick. 511: "There is a large class of cases in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known, at the time the act is done, whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful; still, if it was not known and understood to be unlawful at the time; if it was an act done by the officers having competent authority, either by express vote of the city government or by the nature of the duties and functions with which they are charged by their offices, to act upon the general subject matter; and especially if the act was done with an honest view to obtain for the public some lawful benefit or advantage,--reason and justice obviously require that the city, in its corporate capacity, should be liable to make good the damage sustained by an individual in consequence of the acts thus done. . . .

"The court is therefore of opinion that the city of Boston may be liable in an action on the case, where acts are done by its authority which would warrant a like action against an individual, provided such act is done by the authority and order of the city government, or of those branches of the city government invested with jurisdiction to act for the corporation upon the subject to which the particular act relates, or where, after the act has been done, it has been ratified by the corporation, by any similar act of its officers. . . . As a general rule, the corporation is not responsible for the unauthorized and unlawful acts of its officers, though done colore officii. It must further appear that they were expressly authorized to do the acts by the city government, or that they were done bona fide in pursuance of a general authority to act for the city on the subject to which they relate; or that, in either case, the act was adopted and ratified by the corporation."

There is no pretense in the present case that the city of...

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