Wallace v. City of Menasha

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtLYON
Citation4 N.W. 101,48 Wis. 79
PartiesWILLIAM WALLACE, RESPONDENT v. THE CITY OF MENASHA, APPELLANT.
Decision Date07 January 1880

48 Wis. 79
4 N.W. 101

WILLIAM WALLACE, RESPONDENT
v.
THE CITY OF MENASHA, APPELLANT.

Supreme Court of Wisconsin.

Filed January 7, 1880.


Appeal from Winnebago circuit court.

Action to recover damages for the alleged unlawful conversion by the defendant city of certain personal property of the plaintiff.

The facts, as they appear from the pleadings, evidence and findings of the judge are briefly as follows: The annual tax list of the city of Menasha for 1875 was duly made. The proper warrant to the treasurer to collect the taxes assessed therein, signed by the mayor and clerk, and sealed with the city seal, was appended thereto, and the same was delivered to the city treasurer. Such tax list included state, county, school and city taxes to be collected for that year in the city of Menasha. A tax of $70.50 was therein assessed against the firm of Kelley & Co. That firm neglected or refused to pay such tax, whereupon the treasurer seized and sold the property described in the complaint, and from the proceeds of the sale satisfied the tax against Kelley & Co. The property belonged to the plaintiff, and was of the value of $300.

On these facts the court found as a conclusion of law that the plaintiff was entitled to judgment against the city for the value of the property, with interest and costs. From the judgment against it, entered pursuant thereto, the city has appealed.

[4 N.W. 102]

C. W. Felker, for respondent.

E. Mariner and C. A. Hamilton, for appellant.


LYON, J.

Doubtless it has very frequently happened that municipal officers charged by law with the duty of collecting the public revenue have, for non-payment of taxes, seized property belonging to persons not liable to pay such taxes. Many cases of tort, brought against such officers by the owners of property so seized to recover damages therefor, are probably reported in the books, but we have been referred to no case, and upon most diligent search have been unable to find one in which an action of tort for such unlawful seizure has been sustained or even commenced against a municipal corporation.

The absence of such cases raises a very strong presumption that the bar everywhere entertains the view that such actions cannot be maintained. This circumstance is not, however, conclusive of the question, for if a case like this comes clearly within the established doctrine of respondeat superior, the action must be upheld, notwithstanding the absence of cases directly in point.

To determine, therefore, whether this action can be maintained,

[4 N.W. 103]

resort must necessarily be had to the general principles of law relating to the liability of municipal corporations for the torts of their officers or agents.

That actions sounding in tort will lie in certain cases against municipal corporations, though formerly doubted, is now perfectly well settled. It is to be determined whether this is one of those cases.

The rules of law by which the question of the liability of the city of Menasha, in an action of tort for the unlawful seziure by the treasurer of the property of the plaintiff, is to be determined, are thus stated by Chief Justice Shaw in Thayer v. The City of Boston, 19 Pick. 511: “There is a large class of cases in which the rights of both the public and of individuals may be deeply involved, in which it cannot be known, at the time the act is done, whether it is lawful or not. The event of a legal inquiry, in a court of justice, may show that it was unlawful; still, if it was not known and understood to be unlawful at the time; if it was an act done by...

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15 practice notes
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...396; 16 Cyc. 714; Bentley v. State, 73 Wis. 416, 41 N. W. 338;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565;Wallace v. City of Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;C., M. & St. P. Ry. Co. v. State, 53 Wis. 509, 10 N. W. 560;Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L.......
  • Naumburg v. City of Milwaukee, 1,161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 10, 1906
    ...employes engaged in the performance of duties that pertain to the corporate rights and powers of the municipality. In Wallace v. Menasha, 48 Wis. 79, 4 N.W. 101, 33 Am.Rep. 804, it was ruled that the city was not liable for the acts of its treasurer in seizing and selling the property of on......
  • Apfelbacher v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • April 16, 1915
    ...discharge of a governmental function. Kelley v. Milwaukee, 18 Wis. 83;Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760;Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779;Little v. Madison, 49 Wis. 605, 6 N. W. 249, 35 A......
  • Evans v. City of Sheboygan
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1913
    ...a city treasurer in selling the property of the wrong person to secure payment of delinquent personal property taxes. Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Hurley v. Town of Texas, 20 Wis. 634. Nor for injuries caused by a board of public works in disposing of city ga......
  • Request a trial to view additional results
15 cases
  • Chi., St. P., M. & O. Ry. Co. v. Douglas Cnty.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 8, 1908
    ...396; 16 Cyc. 714; Bentley v. State, 73 Wis. 416, 41 N. W. 338;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565;Wallace v. City of Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;C., M. & St. P. Ry. Co. v. State, 53 Wis. 509, 10 N. W. 560;Houston v. State, 98 Wis. 481, 74 N. W. 111, 42 L.......
  • Naumburg v. City of Milwaukee, 1,161.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 10, 1906
    ...employes engaged in the performance of duties that pertain to the corporate rights and powers of the municipality. In Wallace v. Menasha, 48 Wis. 79, 4 N.W. 101, 33 Am.Rep. 804, it was ruled that the city was not liable for the acts of its treasurer in seizing and selling the property of on......
  • Apfelbacher v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • April 16, 1915
    ...discharge of a governmental function. Kelley v. Milwaukee, 18 Wis. 83;Hayes v. Oshkosh, 33 Wis. 314, 14 Am. Rep. 760;Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Schultz v. Milwaukee, 49 Wis. 254, 5 N. W. 342, 35 Am. Rep. 779;Little v. Madison, 49 Wis. 605, 6 N. W. 249, 35 A......
  • Evans v. City of Sheboygan
    • United States
    • United States State Supreme Court of Wisconsin
    • April 29, 1913
    ...a city treasurer in selling the property of the wrong person to secure payment of delinquent personal property taxes. Wallace v. Menasha, 48 Wis. 79, 4 N. W. 101, 33 Am. Rep. 804;Hurley v. Town of Texas, 20 Wis. 634. Nor for injuries caused by a board of public works in disposing of city ga......
  • Request a trial to view additional results

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