State ex rel. LaThers v. Smith

• Decision Date: 09 March 1943
• Citation: 242 Wis. 512,8 N.W.2d 345
• Parties: STATE ex rel. LATHERS v. SMITH, State Treasurer.
• Court: Wisconsin Supreme Court

242 Wis. 512

8 N.W.2d 345

STATE ex rel. LATHERS

v.SMITH, State Treasurer.

Supreme Court of Wisconsin.

March 9, 1943.

Appeal from a judgment of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

Action commenced February 28, 1941, by State of Wisconsin ex rel. William Lathers, Jr., against John M. Smith, Treasurer of the state of Wisconsin, and his successors in office, for a writ of mandamus. From a final judgment awarding plaintiff damages and costs, defendant appeals.

The facts are set forth in the opinion.

Herbert C. Hirschboeck, of Milwaukee, for appellant.

Sanborn, Blake & Aberg, of Madison, for respondent.

BARLOW, Justice.

This is an appeal by John M. Smith, treasurer of the state of Wisconsin, and individually as judgment debtor, from a final judgment dated August 22, 1942, in favor of the respondent, William Lathers, Jr., and against the defendant John M. Smith individually, for $343.98 damages, $100 costs, and $19.44 disbursements, a total of $463.42.

William Lathers, Jr., applied for a writ of mandamus to compel John M. Smith, treasurer of the state of Wisconsin, to honor and pay a state highway commission order for an estimated $16,600 on plaintiff's contract with the state for grading on state trunk highway No. 30. An interlocutory judgment granting peremptory writ of mandamus was entered. Appeal was taken to this court, and on June 25, 1941, the judgment was affirmed. State ex rel. Lathers, Respondent, v. Smith, State Treasurer, Appellant, 238 Wis. 291, 299 N.W. 43. Pursuant to such judgment, damages and costs were allowed as hereinbefore set forth, and it is from this judgment that the present appeal is before the court.

John M. Smith, as state treasurer, is a constitutional officer, elected by the electors of this state. Among other duties, sec. 14.42(4) Stats. provides as follows: “(4) Pay on warrants sums authorized by law. Pay out of the treasury, on demand, upon the warrants of the secretary of state and not otherwise such sums only as are authorized by law to be so paid, if there be appropriate funds therein to pay the same, and, when any sum is required to be paid out of a particular fund, pay it out of such fund only; and upon each such warrant, when payment is made in currency, take the receipt, indorsed on or annexed thereto, of the payee therein named or his authorized agent or assignee.”

In his return to the alternative writ, appellant set forth several reasons why he believed the payment of the order in question was not authorized by law. These questions were determined in the original appeal, holding in substance that under the provisions of secs. 84.06(4) and 20.49(10) Stats. a payment for highway improvements shall be made only on the order of the commission, from which order the secretary of state shall draw his warrant upon the general fund of the state in favor of the payee and charge the same to the proper appropriation, and that the honoring of the order in question by the state treasurer was a ministerial act, unless there was fraud or gross error, which the court held was not properly placed in issue in this case.

Counsel for appellant contends that there is no personal liability on the part of appellant, relying on State ex rel. Bautz v. Harper, 166 Wis. 303, 165 N.W. 281, 284, construing sec. 293.04 Stats. The court at that time fully reviewed sec. 3453 Stats., which was later renumbered 293.04. Special reference is made to the following language in the statute: “shall recover damages and costs in like manner as he might have done in such action for a false return.” In construing this particular language, the court said:

“The terms of the statutes do not create an absolute liability of the respondent for damages in the event a verdict shall be found for relator or if judgment be given him upon demurrer or default. His liability must be determined upon the facts and circumstances of the case, for failure to perform the duty enjoined upon him...