State ex rel. Bank of Commerce v. Bell
| Decision Date | 15 October 1901 |
| Citation | 111 Wis. 601,87 N.W. 478 |
| Parties | STATE EX REL. BANK OF COMMERCE v. BELL, COUNTY TREASURER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Douglas county; A. J. Vinje, Judge.
Mandamus by the state, on relation of the Bank of Commerce, against M. J. Bell, county treasurer. From a judgment issuing a peremptory writ, defendant appeals. Reversed.
In the 1899 tax roll of the town of Superior was included, in separate column, a tax for the payment of judgments to the amount of $12,973.72, inclusive of a judgment in favor of the relator for $2,162.46, of which transcript had been duly filed with the town clerk. The county taxes in the same tax roll amounted to $7,896.02. At the time of making return to the county treasurer by the town treasurer there remained delinquent, and were returned as such, only $7,724.51, exclusive of 5 per cent. collection fee. The relation asserts that this included $1,723.35 of the above-mentioned levies to pay judgments; that the county treasurer has since collected $4,777.95 of delinquent taxes, whereof $1,016.77 is collected upon said judgment levy, relator's proportionate share of which is $267.91; that relator has received from the town treasurer only $1,427.22, leaving still due and unpaid to him $735.25. Upon this relation an alternative writ was issued, commanding the county treasurer to pay over to the relator all moneys collected by him on the delinquent judgment tax on said tax roll belonging to the Bank of Commerce, to wit, $267.92. The treasurer made a return asserting some of the foregoing facts, which are not included in the petition; whereupon, apparently, the petition was by stipulation amended in that respect, and an issue of law was then joined by a motion to quash the alternative writ. As a result, judgment was rendered in favor of the relator, and a peremptory writ issued, commanding the respondent below, as county treasurer, to pay to the relator said sum of $267.92, from which judgment the respondent below appeals.C. H. Crownhart, for appellant.
Reed & Reed, for respondent.
DODGE, J. (after stating the facts).
There are two sufficient reasons why the county treasurer should not be commanded by mandamus to pay to relator the moneys collected by him upon the delinquent taxes returned by the town of Superior: First, because such taxes belong to the county; second, because the town has already collected the whole of the taxes levied to pay judgments, and relator's rights are against the money in the possession of the town or its officers. The first proposition results inevitably from the distinctions pointed out and the arguments stated as supporting the decision of this court in State v. Hobe, 106 Wis. 411, 82 N. W. 336. It was there recognized and declared that section 1114, Rev. St. 1898, which commands that “all taxes so returned as delinquent shall belong to the county and be collected, with the interest and charges thereon, for its use,” must control all “taxes,” but that the word as used in...
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