Bradley v. City of Eau Claire

• Decision Date: 21 November 1882
• Citation: 14 N.W. 10,56 Wis. 168
• Parties: BRADLEY AND OTHERS v. CITY OF EAU CLAIRE.
• Court: Wisconsin Supreme Court

56 Wis. 168

14 N.W. 10

BRADLEY AND OTHERS

v.CITY OF EAU CLAIRE.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Eau Claire county.Cottrill, Hanson & Brown, for respondents, William H. Bradley and others.

J. H. Culbertson, for appellant, the city of Eau Claire.

TAYLOR, J.

This action is brought to recover of the city of Eau Claire money paid to it by the respondents in discharge of an alleged illegal tax levied and assessed against them. There is no dispute about the sufficiency of the allegations of the respondents' complaint showing the illegality of the tax which was collected of the respondents, nor of their right to have the money so paid by them refunded by the city, if the allegations of the complaint are true. The appellant demurred to the complaint, alleging as the only ground of demurrer “that the complaint does not state facts sufficient to constitute a cause of action.” The demurrer was overruled, and from the order overruling the same the defendant appeals to this court.

It is said by the learned counsel for the appellant that the demurrer should have been sustained, because the charter of the city of Eau Claire provides that “no action shall be maintained by any person against the city of Eau Claire, upon any claim or demand, until such person shall first have presented his claim or demand to the common council for allowance, and allowance thereof refused by the council;” and that “the determination of the council, disallowing in whole or in part any claim of any person, shall be final and conclusive, and a perpetual bar to any action in any court founded on such claim, except that such person may appeal to the circuit court, as provided in said charter.” Sections 23 and 24, subc. 7, c. 16, P. & L. Laws 1872. Subsequent sections prescribe how an appeal may be taken from the determination of the common council disallowing a claim.

It seems to us very clear that unless a long line of decisions in this court are to be overruled, the learned circuit judge was right in overruling the demurrer in this case. The words “claim or demand,” as used in the charter, must be restricted to claims or demands arising upon contract, and not to a claim or demand arising out of a tort. The reason for so restricting the meaning of these words in the charter are the same as those urged by this court in the cases of Stringham v. Sup'rs, 24 Wis. 594;Kellogg v. Sup'rs. 42 Wis. 97;Kelley v. City of Madison, 43 Wis. 638; and Ruggles v. Fond du Lac, 53 Wis. 436; [S. C. 10 N. W. REP. 565.]

The case of Kellogg v. Sup'rs, supra, was an action to recover taxes illegally collected of the plaintiff, the same as the case at bar, and in that case the court held that the board of supervisors of the county had no power to pass upon and allow or disallow the same, and that such cause of action was not a “claim or demand” within the meaning of section 42, c. 13, Rev. St. 1858, which provided that “no action shall hereafter be maintained by any person against a county, upon any claim or demand other than a county order, until such person shall first have presented his claim or demand to the board of supervisors of such county for allowance.”

It is true that in the cases of Stringham v. Sup'rs and Kellogg v. Sup'rs, supra, in construing the words “claim or demand,” as used in said section 42, great weight is given to the fact that in section 27 of the same chapter, in defining the powers of the board of supervisors, it is provided that they shall have 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, and when so settled they may issue county orders therefor, as provided by law;” and that sections 37 and 38 prescribe the manner in which accounts shall be made out and presented to the board, and authorizes the board to disallow an account in whole or in part; and it is urged by the court, in the decisions in these cases, that as these sections only authorize the board to allow or disallow accounts when presented to the board, and not claims or demands growing out of a tort, it was clear that the words “claim and demand,” as used in section 42, must mean claims and demands arising upon...