Cnty. of Green v. Monroe

• Decision Date: 10 May 1882
• Citation: 12 N.W. 472,55 Wis. 175
• Parties: COUNTY OF GREEN v. VILLAGE OF MONROE.
• Court: Wisconsin Supreme Court

55 Wis. 175

12 N.W. 472

COUNTY OF GREEN

v.VILLAGE OF MONROE.

Supreme Court of Wisconsin.

Filed May 10, 1882.

Appeal from Green county circuit court.

This action is brought by the county to recover from the village $2,850, collected by the village during the years 1879 and 1880, for licenses granted during those years to sundry persons, allowing them to sell intoxicating liquors in the village. The complaint, in effect, alleges that the county system of supporting the poor, and abolishing all distinctions between county poor and town poor in the county, had been adopted by the county and continued in force ever since 1860; that the expenses of maintaining all the poor in the county had become and was a county charge; that the resolution of such adoption, duly certified by the clerk of the board, had been filed in the register's office; that the village had never provided for the support of the poor therein, nor paid any of said license moneys to the treasurer of the town of Monroe, in which the village was situated, nor to the county treasurer, as required by the statute, but had applied the same in defraying the expenses of the village. The answer admits all the allegations of the complaint, except that such license moneys ought of right and according to the statute to have been paid to the county treasurer, and by way of avoidance pleads the resolution of the board of trustees of the village for each of said years, disposing of and appropriating said license moneys to the repair and grading of the public streets and alleys, and the building and repairing of sidewalks, gutters, culverts, and bridges within the village, and the payment of night-watch of the village; that, under the charter of the village, (chapter 48, P. & L. Laws 1858, and chapter 140, P. & L. Laws 1859,) the village was authorized to grant the licenses in question, and the treasurer of the same was required to collect and hold the moneys thereon, and not to pay out the same except upon the written order of the board of trustees, signed by the president and countersigned by the clerk; and that ever since the organization of the village, in 1858, similar licenses had been granted each year, and the license moneys each year collected, held, appropriated, and used the same as in the years 1879 and 1880, respectively, without being questioned or tested in any public or private suit or action. To the answer so interposed the county demurred, on the ground that the answer did not state facts sufficient to constitute a defence to the cause of action stated in the complaint, and from the order sustaining the demurrer this appeal is brought.P. D. Clawson, for respondent.

B. Dunwiddie, for appellant.

CASSODAY, J.

In Churchill v. Herick, 32 Wis. 357, it was held that chapter 35, Rev. St. 1858, which constituted the general excise law at the time, by its terms applied to cities as well as to villages and towns, and that all moneys received for licenses granted under the provisions of that law, in counties where the county system of supporting paupers had been adopted, were required, by section 16 of that chapter, to be paid into the county treasury, and applied to the payment of the pauper expenses of the county. Chapter 223, Laws 1860, took the counties of Dodge, Jefferson, Columbia, Winnebago, and Brown out from its provisions; and chapter 176, Laws 1863, took out the county of Fond du Lac. Chapter 255, Laws 1873, by its terms took “the several towns, cities, and villages of Green and Green Lake counties” out of the general statute, and provided that all such license moneys should “be held and disposed of in the same manner as the general town, city, and village funds are now (then) disposed of by law, any law to the contrary notwithstanding.” The next year an act was passed “to consolidate and codify the various laws of our state relating to excise and the sale of intoxicating liquors.” Chapter 179, Laws 1874. The twenty-third section of that chapter made it applicable to the whole state and every part thereof, with the proviso that sections 1 and 2, in so far as they fixed the term for which any license should be granted, should not in any way interfere with or change the provisions of any village or city charter in that behalf, and also with a proviso giving to the board of supervisors, common council, and village board of trustees certain discretionary powers in disposing of the license money by ordinance or resolution in a different mode. The...