Oneida Cnty. v. Tibbetts

• Decision Date: 02 May 1905
• Citation: 102 N.W. 897,125 Wis. 9
• Parties: ONEIDA COUNTY ET AL. v. TIBBETTS ET AL.
• Court: Wisconsin Supreme Court

125 Wis. 9

102 N.W. 897

ONEIDA COUNTY ET AL.

v.TIBBETTS ET AL.

Supreme Court of Wisconsin.

May 2, 1905.

Appeal from Circuit Court, Oneida County; W. C. Silverthorn, Judge.

Action by Oneida county and others against H. L. Tibbetts and others. From a judgment for defendants, plaintiffs appeal. Reversed.

After a review of the equalization of the valuation for taxation of the various municipalities in Oneida county for the year 1899, had upon the petition of the towns of Woodboro and Hazelhurst in pursuance of section 1077a, Rev. St. 1898, said towns, upon notice given the attorneys who had appeared before said commission for review, presented to the circuit judge statements of their expenses claimed to have been incurred in connection with the making of the application and the subsequent proceedings. Such statements included approximately $3,000 expended for estimating timber lands through the county, the persons to whom it was paid having been called and testified as witnesses upon the hearing. Most of this expense was incurred for work done prior to making the application. The circuit judge made so-called. findings allowing such expenses, and apportioning them between the two towns--68 per cent. to Hazelhurst and 32 per cent. to Woodboro--and ordering the clerk of the circuit court of Oneida county to draw and issue to each of said towns a certificate for its amount, which he did. Attempted transfer of these certificates was made by the town of Hazelhurst to one Yawkey, and by the town of Woodboro to one A. O. Jenne. At the time for payment of taxes in the spring of 1900, each of these assignees tendered certain of the above-mentioned certificates in payment of county taxes. The treasurer of each of these towns received such certificates in payment of county taxes, and gave receipts in full to the persons so paying; and, in settlement with the county treasurer, each tendered such certificates in satisfaction of so much of their amount of the county taxes. The county treasurer refused to receive the same. The certificates were deposited in bank subject to his order, and the respective town treasurers refused to otherwise pay over the amount of the county taxes returned by them as collected. These actions were commenced by Oneida county against the respective town treasurers and their bondsmen to recover the amounts so refused to be paid. After trial the court held such certificates valid obligations, and also held that the validity of the circuit judge's order allowing the expenses was impregnable to collateral attack; that the town treasurers were obliged to receive such certificates in payment of county taxes, and that their receipt for that purpose paid such taxes and paid such certificates, and that the county treasurer was bound to receive them in settlement from the town treasurers; and that the town treasurers had therefore fully paid over all for which they were liable upon their respective warrants and bonds. Whereupon judgment in each case was entered for the defendants, from which the plaintiffs appeal.Sam S. Miller and Greene, Fairchild, North & Parker, for appellants.

John Barnes, for respondents.

DODGE, J. (after stating the facts).

At the very threshold of this case we meet a question which, if answered in favor of the appellants, completely disposes of all defense. That is, whether the town treasurers had any authority in law to accept the certificates of audited expenses, even if valid and proper, in payment of county taxes, as collecting agents for the county, and to tender them in place of money. Such authority must rest in express statute, for the receipt of governmental revenues in money is so essential to the performance of the functions of government that no contrary policy can be assumed without express legislative declaration. Keep v. Frazier, 4 Wis. 224;Town of Iron River v. Bayfield County, 106 Wis. 587, 592, 82 N. W. 559; 2 Cooley, Tax'n (3d Ed.) 804; 27 A. & E. Ency. of Law, 751. Highly important governmental duties are delegated to counties, upon the performance of which the welfare of the whole community depends, such as the repair and maintenance of highways and bridges; also of courts of justice; registration of conveyances; erection, repair, and preservation of public buildings, courthouses, jails, county asylums, and the like. To accomplish these, much wisdom and discretion must be exercised in making provision for revenue in advance for each year, and in applying it. Any substantial failure or interruption of revenue may seriously embarrass, if not wholly suspend, the performance of such duties. It is not surprising, therefore, that we find the rule uniform among courts to restrict to their very words all statutes tending to such results--indeed, often to deny general words their full force, in deference to the presumed improbability of any intent to disturb public business. Thus both the garnishment and mechanics' lien statutes are, upon such grounds, held not to reach counties or cities, although by their terms they apply to all corporations. Burnham v. The City of Fond du Lac, 15 Wis. 193, 82 Am. Dec. 668;Buffham v. City of Racine, 26 Wis. 449;Merrell v. Campbell, 49 Wis. 535, 5 N. W. 912, 35 Am. Rep. 785;Wilkinson v. Hoffman, 61 Wis. 637, 21 N. W. 816;Pittsburg Testing Laboratory v. Milwaukee Electric R. & L. Co., 110 Wis. 633, 86 N. W. 592, 84 Am. St. Rep. 948. On similar grounds, set-off or counterclaim of municipal obligations against taxes is denied. 1 Cooley, Tax'n (3d Ed.) 20; Anderson v. City of Mayfield, 93 Ky. 230, 235, 19 S. W. 598;Finnegan v. City of Fernandina, 15 Fla. 379, 21 Am. Rep. 292. Other illustrations of the strictness of construction applied to statutes authorizing payment of taxes otherwise than in money are State ex rel. Egger v. Payne, 151 Mo. 663, 52 S. W. 412;K. C., F. S. & M. R. Co. v. Thornton, 152 Mo. 570, 54 S. W. 445;Bummel v. City of Houston, 68 Tex. 10, 2 S. W. 740;Jones v. Melchior, 71 Miss. 115, 13 South. 857.

Respondents rely for authority in accepting these certificates on section 1077a, Rev. St. 1898, which provides that the fees and expenses of a commission to review the county equalization are, “with all other expenses connected with the making of the application and the subsequent proceedings, to be audited and allowed as a county charge by the county board or by the circuit judge appointing them, and when audited by the circuit judge to be paid in the same manner that jurors and witnesses in state cases are paid.” The ascertainment and payment of both jurors and witnesses in state cases are expressly and in terms regulated by sections 2560, Rev. St. 1898, as to jurors, and 4060, Id., as to witnesses, which provide for the issue of a certificate to each by the clerk of court, and...