State ex rel. Sch. Dirs. of Worcester v. Johnson

• Decision Date: 15 December 1899
• Citation: 80 N.W. 1105,105 Wis. 111
• Parties: STATE EX REL. SCHOOL DIRECTORS OF TOWN OF WORCESTER ET AL. v. JOHNSON, COUNTY TREASURER, ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 111

80 N.W. 1105

STATE EX REL. SCHOOL DIRECTORS OF TOWN OF WORCESTER ET AL.

v.JOHNSON, COUNTY TREASURER, ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Appeal from circuit court, Price county; John K. Parish, Judge.

Application for mandamus by the state, on relation of the board of school directors of the town of Worcester, against Fred Nelson, as county treasurer of Price county, and O. A. Johnson, his successor. From a judgment in favor of relators, respondents appeal. Reversed.

In each of the years 1894 and 1895 the county board of Phillips county, in their resolution determining the amount of tax to be levied in the town of Worcester for county purposes under section 1074, Rev. St., included an item, “county school tax,” $351.86 in 1894, and $222.26 in 1895. In the certificatemade by the county clerk to the clerk of the town, under section 1096, Id., this item was included along with all the other items of state and county taxes to be levied in that town, and was so levied and extended on the tax roll, and included in the warrant from the town clerk to the town treasurer. The town also levied town taxes for school purposes, approximating $5,000, in each of those years; and in the warrant from the town clerk to the town treasurer the latter was ordered to retain only the items specified as town taxes, which did not include the two items called “county school tax.” The town treasurer obeyed his warrant, retained only those which were specified as town taxes, and paid all balance over to the county treasurer, treating these items of county school tax as county taxes. Worcester is under the township system of schools. The circuit court, after return and trial, issued its writ of mandamus, in which it commanded Nelson, the county treasurer, to pay over to the town treasurer, as such, the aforesaid sums “for the use of said relators, the board of school directors of the town of Worcester.” The judgment ordering said writ was rendered December 16, 1898. On January 3, 1899, the respondent Nelson, then county treasurer, gave notice of appeal, deposited the amount ordered to be paid with the clerk of court, and gave bond on appeal. Afterwards, O. A. Johnson, who became county treasurer on the first Monday in January, 1899, was, on his own motion. joined as a party respondent, and by the order given authority to perfect appeal. He thereupon served notice of appeal from the judgment, and gave undertaking for costs.

H. C. Peters, for appellants.

M. Barry, for respondents.

DODGE, J. (after stating the facts).

1. The appellant objects to the judgment on the ground, among others, that the money raised by taxation and paid over to the county treasurer did not belong to the school district, relator, but, if not to the county, to the town. The question of ownership of moneys thus coming into a public treasury is not easy. The whole transaction, strictly speaking, was unlawful and by mistake; but the taxpayers from whom the money came are probably not in position to reclaim it, having paid voluntarily. Whether that be so or not, they are not now seeking to recover it. We may look upon it as a donation by them, and need only consider which of these corporations is the donee. The county board had no power or authority to levy upon the town of Worcester any school tax for the use of the county. It did, however, have both the power and the duty, by sections 1074, 1075, Rev. St., to include in its resolution levying the county taxes, and in the certificate of those taxes to the town clerk, a direction to raise a certain amount of school taxes for the use of the school district, a distinct corporation. We have no doubt that the act done by the county board and county clerk was intended as a performance of this duty, and that the misdescription of the item as a “county school tax” was a mistake, merely, so that the act really done was that which the statute commands, namely, the direction above described. This being so, we must consider the acts of the town officers as done in compliance with that direction, and, while irregular, as amounting merely to extension upon the tax roll, and collection, of the amount directed for the purpose prescribed by law, namely, for the use of the school district. The ensuing confusion and mistakes, whereby the town treasurer, lawfully holding this money for the school district, paid it over to the county treasurer who, under the same mistake, received it and carried it into the county treasury as county money, cannot change the rights previously existing. As between public corporations and officers, title and ownership to such a fund can be neither gained nor lost by its transfer through mistake from one treasury to another, its identity being always defined and recognized (Wisconsin Cent. R. Co. v. U. S., 164 U. S. 190, 212, 17 Sup. Ct. 45, 41 L. Ed. 399); and the corporation to which it belongs...