State ex rel. Burnham v. Cornwall

• Decision Date: 16 November 1897
• Citation: 73 N.W. 63,97 Wis. 565
• Parties: STATE EX REL. BURNHAM v. CORNWALL, COUNTY CLERK.
• Court: Wisconsin Supreme Court

97 Wis. 565

73 N.W. 63

STATE EX REL. BURNHAM

v.CORNWALL, COUNTY CLERK.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Richland county; George Clementson, Judge.

Mandamus, on the relation of O. J. Burnham, against Charles B. Cornwall, as county clerk of Richland county. From a judgment for relator, respondent appeals. Affirmed.

This is an action of mandamus to compel the appellant, as the county clerk of Richland county, to carry into effect, in the apportionment of the taxes levied in that county for the year 1895, the corrections in the apportionment or equalization of assessments of 1894, between the several towns, villages, and cities of that county, made by commissioners appointed for that purpose, under chapter 212 of the Laws of 1882 (Sanb. & B. Ann. St. § 1077a). The action was begun in January, 1896. The petition is made by one O. J. Burnham, who describes himself as being a resident, freeholder, and taxpayer of the city of Richland Center, in Richland county, and as mayor of the city of Richland Center, and alleges that the petition is made in his own behalf, as such taxpayer, and in behalf of the city of Richland Center, and of the taxpayers of that city, and that he is authorized by the city to make the petition. The petition then recites the appointment of the commissioners to review the apportionment of the taxes among the several towns, villages, and cities of the county, and their action, and the filing of their certificate, whereby they determine the relative valuation of the several towns, villages, and cities; that the relative valuation was changed by that determination, in important and material sums and amounts; that the appellant, as county clerk of that county, failed and refused to give effect to the determination of the commissioners, in the apportionment of the taxes, and in making the tax roll of the next following year, whereby the taxpayers of the city of Richland Center and the petitioners were required to pay a larger rate of taxes than was properly chargeable to them, according to the determination of the commissioners; and asking that the appellant, as such county clerk, be required, by mandamus, to carry into effect, in the apportionment of such taxes, the determination of the commissioners, according to law. The facts were, in the main, stipulated. The court decided the issue in favor of the relator, and adjudged that a peremptory writ of mandamus be issued, according to the prayer of the petitioner, and that the relator recover nominal damages and his costs. The appeal is from that judgment.F. W. Burnham, G. D. Miner, and A. D. Sanborn, for appellant.

D. H. Bancroft, for respondent.

NEWMAN, J. (after stating the facts).

The appellant assigns for error (1) that the action is not brought by or on behalf of the proper parties; (2) that no demand upon the appellant, for performance, is shown; (3) that the commissioners lost jurisdiction by an informal adjournment; and (4) that it does not appear that performance is now within the appellant's power.

1. It is the contention of the appellant that all the towns, villages, and cities affected by the determination of the commissioners are necessary parties plaintiff, and should all be joined with the relator, or, at least, that the relator should expressly state that it is made in their behalf. A moment's reflection will convince that this cannot be the true solution of this question; for no town, village, or city is in the least affected by the determination of the commissioners. It does not in the least affect the revenues of the town, nor impose a debt upon it, as a political organization. But it does, immediately and directly, affect each taxpayer, in the amount of his tax. The general tax is not a debt against the town, but is a direct charge upon the taxpayer. And the determination of the commissioners but determines the relative proportion of the general tax which shall be charged upon the taxpayers of each town. So, the town not being the real party in interest, the relation should not be in its name, nor on its behalf. Any citizen was competent to bring the action; for it is the settled rule in this state, and is in accord with the great weight of American authority, that, where the relief sought is a matter of public right, the people at large are the real party, and any citizen is entitled to a writ of mandamus to enforce the performance of such public duty. It is sufficient if he is a citizen, and, as such, interested in the execution of the law. Merrill, Mand. § 230; High, Extr. Rem. (3d Ed.) § 431; State v. Doyle, 40 Wis. 175;State v. Cunningham, 83 Wis. 90-124, 53 N. W. 35. The relator is a citizen and taxpayer of Richland county, and so is a proper person who may maintain the action.

2. Where...