Land, Log & Lumber Co. v. Oneida Cnty.

• Decision Date: 25 October 1892
• Citation: 53 N.W. 491,83 Wis. 649
• Parties: LAND, LOG & LUMBER CO. v. ONEIDA COUNTY ET AL.
• Court: Wisconsin Supreme Court

83 Wis. 649

53 N.W. 491

LAND, LOG & LUMBER CO.

v.ONEIDA COUNTY ET AL.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Oneida county; CHARLES V. BARDEEN, Judge.

Action by the Land, Log & Lumber Company against Oneida county and G. H. Clark, its treasurer; town of Hazelhurst and Edward Forham, its treasurer; town of Pelican and A. D. Sutton, its treasurer; and town of Eagle River and T. B. Walsh, its treasurer. From certain orders made on demurrers and motions, plaintiff appeals. Affirmed.

The other facts fully appear in the following statement by LYON, C. J.:

The plaintiff corporation is the owner of large quantities of land in the defendant county and towns, and brings this action to restrain the county from paying certain county orders issued by it to such towns, and to annul such orders. This appeal is from the following orders of the circuit court: (1) An order denying a motion on behalf of the plaintiff company to strike out as frivolous the general demurrer to the complaint of two of the defendants; (2) an order dissolving a temporary injunction; and (3) two orders sustaining general demurrers, by different defendants, to the complaint. The facts out of which the alleged cause of action arose, as stated in the complaint, are as follows: From 1880, and before, until January 1, 1887, the territory now constituting Oneida county was a portion of Lincoln county. The act creating the county of Oneida is chapter 411, Laws 1885. It provides for the equitable division of the assets and liabilities of Lincoln county between the two counties, on the basis of the equalized assessment of property therein for taxation in 1884. One of the liabilities of Lincoln county at that time was an indebtedness to the state on account of a loan of $55,000 of trust funds to such county, pursuant to chapter 280, Laws 1880. The act provided that the interest, and 10 per cent. of the principal of such loan, should be charged to the county annually, as part of the state tax apportioned thereto, until the loan should be paid. By chapter 314, Laws 1881, chapter 280 of 1880 was amended so that the state treasurer was required to apply on such annual payment of interest and 10 per cent. principal of the loan such moneys in his hands as were realized from sales of swamp lands in Lincoln county, not theretofore set apart for normal school purposes, and to charge to the county, as part of the state tax apportioned to it, only the unpaid balance of such required annual payment. Chapter 260, Laws 1883, provides that Lincoln county shall be credited every three months with the amount in the hands of the state treasurer, which the act of 1881 makes applicable to the payment of such loan. Such were the provisions of law affecting the loan to Lincoln county when the act creating Oneida county went into effect on January 1, 1887. Under the General Statutes, one half of the proceeds of sales of swamp lands constitutes a drainage fund. This fund is distributed annually to the several counties in which the lands sold are sit uated, each county receiving the portion thereof arising from sales of such lands situated therein. The amount of the drainage fund thus paid to any county is then annually apportioned between the towns in which such lands are located, and each town receives its proper share of the fund from the county treasurer, to be expended by it for the purposes specified in the statute. Rev. St. §§ 251-257. Chapter 153, Laws 1887, amends chapter 411 of 1885, in respect to the adjustment and division between the two counties of Lincoln and Oneida of the assets and liabilities of Lincoln county. It provides, among other things, for ascertaining the proportion of the indebtedness of Lincoln county to the state on account of the loan of 1880 which Oneida county should pay, and that the amount thereof, when thus apportioned, “shall be collected and paid by said Oneida county in the same manner as if the loan had been made to said county of Oneida.” The proportion of such indebtedness chargeable to Oneida county having been ascertained in the manner specified in chapter 153 of 1887, the state treasurer retained the drainage fund which otherwise would have been paid to Oneida county, and applied it on its proportion of such indebtedness. The several towns in Oneida county to which the drainage money payable to that county would have been distributed under the General Statutes (being the defendant towns) claimed of the county the amount of such moneys which would have been payable to them respectively had the county received the fund. The county board of surpervisors, admitting the legality of such claims, and the obligation of the county to pay them, allowed the same, and issued and delivered to the treaurer of each town county orders for the amount to which such town would be entitled under the General Statutes, with interest thereon from the time the same was credited by the state treasurer to the county. The respective town treasurers, who are defendants in this action, hold such orders, and the towns claim that they are valid obligations against the county.

The following is the opinion of Judge BARDEEN, omitting the statement of facts:

“* * * According to the legislation in force at the time Lincoln county made its loan from the state, the ‘drainage fund,’ so called, derived from the sale of swamp lands, was to be distributed by the state to the several counties wherein such lands were, and by the county apportioned to the different towns in the manner stated. That the state has full power to control and dispose of the drainage fund as it sees fit, as against every person except the United States, is settled by Town of La Pointe v Town of Ashland, 47 Wis. 251, 2 N. W. Rep. 306, and cases there cited. The several towns in the state have no right to the fund, save such as is given by the legislative enactment, which may be changed or altered at the will of the legislature. I think it is clear that when the swamp lands are sold the proceeds therefrom become immediately, by force of the statute, a part of the different funds into which it is divided, and, in the absence of any special legislation, such proceeds become subject to apportionment to the different towns, as prescribed by the general law. The plaintiff contends ‘that the moneys alleged to have been received by the state treasurer never became a part of the drainage fund subject to apportionment,’ etc., because the same had been otherwise appropriated by the special acts before cited; or, in other words, that chapter 314, Laws 1881, applied to, and continued to apply to, all the territory of Lincoln county, as it then existed, and diverted that portion of the drainage fund going to the towns within this territory to the payment of the debt of Lincoln county, until such debt was paid. To my mind it is clear that, as soon as the swamp lands were sold, the proceeds became a part of the drainage fund under the drainage law, and that the effect of chapter 314 was to change the beneficiary to the fund in so far as the county continued to exist as it then eixsted. While it is true there is no word in the act expressly cutting the towns in this county off from their right to this fund, yet the direction to the state treasurer to apply on the loan of the state to Lincoln county the amount realized from swamp land sales during the year must be held to be a diversion of the fund to a different beneficiary, and, in effect, cut off the towns from any claim thereto, so long as the act in question remains applicable to this territory. The contention of the defendant that the subsequent legislation creating Oneida county (which makes no provision for the disposition of the drainage fund in the territory detached) takes this territory out of the operation of chapter 314, raises a more difficult and troublesome question. Section 7 of ...