State ex rel. Goebel v. Chamberlain

Pinney, J. The question to be determined is whether,, under the statute, a delinquent county tax list can be lawfully published in a German newspaper, in the English language, if the newspaper is in every other respect lawfully qualified as a means of making such publication. Sec. 1130, S. & B. Ann. Stats., requires the county treasurer, on the first Monday of April in each year, to “ make out a statement of all lands upon which the taxes have been returned as delinquent and which then remain unpaid, except public lands held on contract and lands mortgaged to the state, containing a brief description thereof, with an accompanying notice stating that so much of each tract or [506] parcel of land described in said statement as may be necessary therefor, will on the third Tuesday of May next thereafter, and the next succeeding days, be sold by him at public auction, at some public place, naming the same, at the seat of justice of the county, for the payment of taxes, interest and charges thereon; and if in any county no seat of justice shall be established, then at such public place therein as he may select; and cause such statement and notice to be published in a newspaper printed in his county, if there be one, . . . which statement and notice shall in all cases be published once in each week, for four successive weeks prior to said third Tuesday of May; . , . but it shall be unlawful for any county treasurer to publish such statement and notice in any newspaper in his county that has not been regularly and continuously published in such county once in each calendar week for at least two years immediately before the date of such notice, if there be a newspaper which has been so published in such county;” and any county treasurer violating the provisions of this section is subject to a specified forfeiture. The statute thus defines, in one respect, what shall constitute a legal newspaper for the publication of such statement and notice. Sec. 1131 provides that “in every county where the number of the descriptions in the list of lands to be advertised for sale for the nonpayment of taxes by the county treasurer shall exceed four' thousand, the county treasurer shall let by contract the publication of such list to the lowest bidder, upon a notice written or printed, to be delivered to and left with the publisher or one of the publishers of each newspaper in his county, at least ten days prior to the time at which such contract shall be let; but no such contract shall be made to publish such list in any newspaper which has not been regularly and continuously published once in each week in such county for at least two years prior to the time at which such publication shall be by law re [507] quired to be made, unless there be no such newspaper so published in such county.” It will be observed that the statute uses the words “a newspaper” without limiting it to any particular kind of newspaper, hither German or English. The only express qualification is that the paper must have been regularly and continuously published once in each week in such county for at least two years prior. By sec. 675 it is provided that “the county board may order public notices relating to tax sales, redemption and other affairs of the county, to be published in a newspaper, printed in any other than the English language, to be designated in such order, whenever they shall deem it necessary for the better information of the inhabitants thereof, and it shall appear from the last previous census that one fourth or more of the adult population of such county are of a nationality not speaking the English language, and that there shall have been a newspaper published therein continuously for one year or more in the language spoken by such nationality; provided, that all such notices shall also be published in a newspaper published in the English language as provided by law. The compensation for all such publications shall be paid by the county ordering the same, and shall be the same as that prescribed by law for publication in the English language; and no extra charge shall be allowed for translation in any case.” The power of the county board to make the order is discretionary, and it must appear from the last previous census that one fourth or more of the adult population of such county are of a nationality not speaking the English language, and that there shall have been a newspaper published therein for one year or more in the language spoken by such nationality; and it is also made necessary that “all such notices shall also be published in a newspaper published in the English language, as provided by law.” Sec. 1130, [508] S. & B. Ann. Stats., authorizes the county treasurer to use his discretion in selecting the newspaper in which he shall publish the delinquent tax list if the number of descriptions is less than 4,000, but requires him to let the printing of it to the lowest bidder when it exceeds 4,000 descriptions, lie has in such case no discretion. He is required to notify each newspaper in the county to file bids; that is to say, each newspaper qualified to make such publication. The statute, when construed in the light of the common law, invites bids from only qualified newspapers, and a paper printed in the German language is not within the statute. In Kellogg v. Oshkosh, 14 Wis. 623, the common council, under the charter (sec. 9, subch. Ill, ch. 133, P. & L. Laws of 1856), had power to designate a newspaper j'printed vn the German language as the official paper of the city; and it was held that- the notice required by sec. 9, subch. Till, and published in such paper, was valid, if also published in the English language. Also, in Waleeley v. Nicholas, 16 Wis. 588, it was held that the publication of a summons in a German newspaper, in the English language, was a legal publication. In that case the person to be served was an American, and the officer making the order for its publication directed that it be published in a German newspaper, to wit, the Wisconsin Zeitung, published at Madison, and the summons was published therein in the English'language. The court held it was a sufficient publication, and the officer granting the order had a discretion to determine in what paper it should be published. Dixon, O. J., rendering the opinion of the court, says: “ Upon affidavit, as prescribed by statute, the court, or a judge thereof, or a court commis-sionei-, may grant an order that the service of the summons be made by publication. R. S. [1858] ch. 124, sec. 10. If the circuit judge who granted the order in this case, in the exercise of the discretion vested in him by the statute, di [509] rected publication in a German, instead of an English, newspaper, as being most likely to give notice to the person intended to be served, we see no legal objection to it.” The present case is clearly distinguishable from the cases •cited, in that in this case the county treasurer had no power •or discretion to receive relator’s bid, or .award him a contract under it. No authority had been given to him by the •county board for that purpose under sec. 675, R. S. 1878. The English language is the language .of the country, to be used in all legal and official notifications or proceedings, in the ■absence of any statute authority to the contrary. It does not appear that the county board had considered or acted upon the subject. We hold that this section is decisive •against the validity of the relator’s claim, under his bid, to the contract. The publication of said list in the English, language in a German paper would not, for the reasons stated, in the absence of such authority, be a legal publication; and the county treasurer rightfulty refused to award to the relator a contract for that purpose, upon his bid. It follows from these views that the order appealed from, •denying the writ of mandamus prayed for, is correct and must be affirmed. By the Court.— The order of the circuit court appealed from is affirmed.