State ex rel. Board of Education v. Hunter

Wixslow, J. By the charter of the city of Superior (ch. 124, Laws of 1891), the board of education of the city is made a body corporate, and endowed with authority to manage and control the public schools of the city, and for that purpose to levy all necessary taxes. These taxes are [586] collected by the city treasurer in the same roll and under the same warrant as other general taxes. The city treasurer is made the treasurer of the- board of education, and is required to receive all the public school funds, whether raised by the state, the county, the city, or district, as a separate fund, and pay the same out only upon the order of the board of education. By sec. Ill of the charter the city treasurer is required, out of the taxes by him collected, to first pay the state tax to the county treasurer, and then to “ set aside all sums of money levied for school and library purposes,” then taxes to pay the principal and interest on the public debt, then taxes for various other municipal purposes in order, and finally to pay the county taxes. It appears by the petition for the writ that in the year 1900 the board of education levied a tax of $135,000 for school purposes, that the county board of supervisors thereafter apportioned to the city the additional sum of $7,732.73 to be raised by the city for school purposes, and that both of these sums were placed in the tax warrant issued to the city treasurer, and that at the time of the filing of the petition the city treasurer was “ in the act of collecting the same.” It is further stated in the petition that in the previous year the sum of $7,154.91 was apportioned by the county board to be raised as an additional school tax by the city, and that the appellant, Hunter, then being the city treasurer, refused and neglected to retain in his hands, as treasurer of the school funds, the whole of said county school tax, but only retained $4,500 thereof for school purposes, and paid over the balance of said fund to the county treasurer, and that he now claims the right and threatens to set apart for other city uses all other taxes raised for city purposes prior to setting apart said sum of $7,732.73 for school purposes. It is not alleged that the treasurer has ever failed to properly set aside or account for the sums levied for school purposes by the board of education, or that he threatens now to do so, but [587] the gravamen of the petition is simply that he threatens to divert from its proper use a part of the so-called “ county ” school tax when it is collected by him. It is argued on behalf of the appellant that this “ county ” school tax is an illegal, and unauthorized tax, that it may never be collected, and hence that on this ground no writ of mcmdamus should issue in any event. This “ county ” school tax was levied in supposed conformity with secs. 1074-1076, Stats. 1898, which provide, in substance, that the county board of supervisors, at their annual meeting in November of each year, shall determine the amount of taxes to be levied for county purposes for the year, and the amount to be raised by each town for support of common schools, and that the county clerk' shall apportion said county tax among the towns, cities, and villages of the county, and carry out the sums so apportioned, as well as the school tax to be raised as aforesaid, opposite the name of each of said towns, cities, and villages, and certify the same to the clerk of each of such towns, cities, or villages. The appellant’s contention is that, so far as school taxes are concerned, these sections relate only to. towns, and were not intended to, and do not in fact, authorize the levy by the county board of school taxes upon a city which is authorized by law to levy its own school taxes, as is the case with the city of Superior. The question so raised is a serious one, but we do not find it necessary, for reasons hereafter stated, to decide it in this action. Conceding that the tax was not authorized by law, still, if the taxpayers paid the same voluntarily, so that it reached the hands of the treasurer, no reason is perceived why the same would not become a part of the school funds in the hands of the treasurer upon the same footing as other school funds. State ex rel. School Directors v. Nelson, 105 Wis. 111. But here arises the serious difficulty with the petitioner’s case. It is nowhere alleged that this sum has come into [588] the hands of the city treasurer; in fact the petition distinctly negatives such fact by alleging that the treasurer “ is in the act of collecting ” the taxes named in his warrant, and will collect sufficient sums to pay in full the state taxes and school taxes before he is required to make his delinquent return to the county treasurer. We have no means of knowing whether the treasurer, at the time of the filing of the petition, had. collected a dollar properly applicable to the extinguishment of the so-called “ county ” school tax. Clearly, the treasurer is under no duty to set aside any moneys for school purposes until he has collected them. The general principle is frequently stated that mandamxcs will not lie to compel performance of an act by a public officer unless the act be one that is actually due from the officer at the time of the application. Until the time arrives when the duty should be performed, there is no default of duty; and mere threats not to perform the duty will hot take the place of default. The writ is not granted to take effect prospectively. Spelling, Extraordinary Relief, § 1385; High, Extr. Leg. Rem. (3d ed.), §§ 12, 36; Tapping, Mandamus, 10; Wood, Mandamus (2d ed.), 51; 14 Am. & Eng. Ency. of Law (1st ed.), 105. The great weight of decision and textbook authority supports this very reasonable rule. The evils which would iresult from a practice which allowed courts to step in át any time by mandamus and direct the future action of a public officer on the assumption that he will disregard his legal duty are so patent that they do not need to be enlarged upon. The case of Att'y Gen. v. Boston, 123 Mass. 460, is cited and relied upon as authority for the issuance of the writ to control prospective action, and such in fact it seems to be. The case is, however, peculiar in its facts, and we are not inclined to regard it as of sufficient weight to justify departure from the general rule. Extreme cases may, perhaps, arise demanding the use of mandamus to control the performance of prospective duties; but this is certainly not such a case. [589] The appellant complains because upon the overruling of the demurrer and motion to quash judgment was immediately entered without notice and without leave being given to make a return. In the view we have taken of the case the objection becomes immaterial, but it seems proper to observe that we see no good reason why the usual practice of allowing a return to be made upon terms after the overruling of a demurrer should not have been followed. By the Court.— Judgment reversed, and action remanded with directions to sustain the motion to quash the alternative writ.