Town of Spooner v. Washburn Cnty.

• Decision Date: 31 January 1905
• Citation: 124 Wis. 24,102 N.W. 325
• Parties: TOWN OF SPOONER v. WASHBURN COUNTY.
• Court: Wisconsin Supreme Court

124 Wis. 24

102 N.W. 325

TOWN OF SPOONER

v.WASHBURN COUNTY.

Supreme Court of Wisconsin.

Jan. 31, 1905.

Appeal from Circuit Court, Wood County; A. J. Vinge, Judge.

Action by the town of Spooner against Washburn county. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action by the town of Spooner against Washburn county to recover on account of collections on delinquent taxes returned by the town to the county. The town filed its claim with the clerk of defendant, demanding payment of the amount due it from the county for collections of delinquent taxes in excess of the amount due thereon to the county. The claim was presented to the county board of supervisors on March 15, 1900, and was on this day wholly disallowed by them. The town duly appealed from such action of the board to the circuit court for Washburn county. While the action was pending in circuit court it was referred to T. H. Woolford, an officer of the court, to hear, try, and determine the issues. In the proceedings taken before the referee the complaint was amended, and issue joined thereon. The answer set up a resolution of the county board of December 28, 1898, which was recorded as follows: “Motion made and carried that the county treasurer be and is hereby instructed to balance all accounts as between the several towns and the county up to and including Dec. 31st, 1898. Recorded vote unanimous.” Upon the evidence adduced before the referee, the court directed a modification of the report and findings of the referee. The court found and determined that plaintiff was a duly organized town, and defendant a duly organized county; that the county from 1890 to 1898, inclusive, annually, duly levied taxes against the town of Spooner in the sums specified; and that the town duly levied the same upon all of the taxable property of the town. The findings specify the various sums of money paid to the town by the county throughout the period of these transactions, and the sums of money paid by the town to the county as state and county taxes. The amount of delinquent taxes, exclusive of fees, returned annually by the town to the county on real estate and personal property, is found in gross amounts, and the collections thereon by the county, exclusive of fees or interest; such sums embracing whatever was collected in case before sale, and the amounts realized from certificates sold at tax sales, and from certificates sold and assigned after tax sale, and from certificates redeemed while held and owned by the county. The court charged the county with the gross sum of $1,995.46, the amount realized out of the settlements for certificates declared illegal by the court. The amount actually realized on sales of lands which had been tax-deeded to the county is charged against the county as due the town. It appears that the county board compromised and remitted to various persons amounts due for taxes which had been returned delinquent. Such action was disregarded by the court, and the full amount of the taxes involved in such compromises was charged to the county. No part of the uncollected personal property tax is charged against the county. The amounts of expense incurred and paid by the county for certificates marked “Void” by the county records, and on land tax-deeded to the county, including fees for the collection, and for publication of tax-sale notice, and for notice of expiration of time for redemption and certificate fees, are ascertained and specified. It also appears that the county paid the sum of $104.35 as costs in an action by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against the county, wherein tax certificates which had been issued for delinquent taxes were declared void. The court excluded all school-tax items, as not properly embraced within the transactions arising out of the delinquent tax return. As a result of the accounting made by the court, it appeared that defendant had money in its possession, collected by it as delinquent taxes in excess of the amount due thereon, in the sum of $5,802.73, with interest, for which judgment was awarded the town, together with costs and disbursements. From this judgment, defendant appeals. Facts material to this controversy not stated above will be given in the opinion.L. H. Mead, for appellant.

K. K. Kennan, for respondent.

SIEBECKER, J. (after stating the facts).

It is insisted by the county that any and all claims of the town of Spooner embraced in this action were settled by the county board, as evidenced by the resolution of December 28, 1898. This resolution declares “that the county treasurer be and he is hereby instructed to balance all accounts as between the several towns and the county up to and including Dec. 31st, 1898.” The record gives no information as to this transaction, other than is disclosed by the context of the resolution, and we are not informed upon what grounds the county board acted in performing the extraordinary public function by which it assumed to discharge and free the county from all legal demands which were then held by towns against it. It is not shown by the evidence that the towns, or any one of them, had presented claims for the consideration of the board, nor does it appear what claims and demands were in fact embraced and covered by this action of the board, nor does it appear that the board knew or attempted to ascertain the state of the accounts between it and the towns. The action and proceeding of the board are unsupported by any basis in fact warranting this summary liquidation and settlement of all reciprocal demands. We know of no authority vesting county boards with power to discharge claims of towns for money collected as delinquent taxes in this ex parte manner. Whatever sums the county collects on such taxes, in excess of what is due it under the statutes, shall be returned to the town treasurer for the use of the town. The right of the towns to any such money cannot be wiped out by the simple declaration of the county board that all such accounts be balanced on the books. To give the board jurisdiction in this matter, it is necessary that a claim, in appropriate form, be presented in behalf of the town, and that the town be afforded an opportunity of prosecuting its demand, and of taking an appeal in case of an adverse decision by the county board.

It is argued that the case of Outagamie County v. Town of Greenville, 77 Wis. 165, 45 N. W. 1090, is an authority recognizing the validity of this proceeding. The subject of controversy in that case pertained to the allowance of accounts for services and expense of commissioners appointed to review the county equalization of assessments. Under the law, the county board was authorized to audit and pay these accounts, and, when so allowed and paid by the county, in the absence of fraud or collusion, the action of the county board was binding on the town liable for such charges. It is clear that the county board was by law made the auditing body as to those claims, which made its decision binding on the town liable therefor. No such authority is vested in county boards, as regards liability to towns for money collected on delinquent taxes. Counsel place stress on the language used in the opinion in that case, to the effect that “the town is represented in the county board by its supervisor, who has, presumably, every reasonable opportunity to protect and defend its rights in the matter of allowing the accounts of the commissioners,” and that “the town is chargeable with notice of the proceeding, and, had it desired to do so, might have contested the accounts.” Such a rule could not apply under the facts and circumstances of the instant case, since the proceeding wholly fails to show that any specific claim of any town was under consideration, to which the resolution could apply. But were the declaration of the court applicable to the situation before us, we would be compelled to decline to follow it. We cannot perceive upon what principle it can be held that the town supervisor, while acting in his official capacity as a member of the county board, is the representative of his town to protect and defend its rights as to any claims it may have against the county. If the county board had occasion to act on any such demand, the...