State ex rel. Wunderlich v. Kalkofen

Maeshaxl, J. It seems that the trial court rightly treated the proceedings on the part of appellants and their attitude in submitting the cause for decision, as was done, as in effect a concession that the allegations of the relation were true and consent to have the case turn on whether respondent was entitled to a town order enabling him to obtain from the town treasurer the money raised by taxation for his benefit. The return of the supervisors was quite evasive, looking at the equivocal nature of the denials as to the allegations of the relation respecting the money to pay respondent’s claim having been raised by taxation, which if not true could easily have been met hy a positive denial, it is quite plain that ap [78] pellants either did not intend to put such allegation in issue or did intend to withdraw the return in that regard by the motion to quash and submission of the case as indicated. There was no complaint made in the court below because the orders disposing of the demurrers and the motion did not grant the privilege of pleading over, and no complaint because the court understood there was no dispute as to the faets. While it was not necessary to file any exception to the order or judgment, one was filed, as indicated by the statement, and its phraseology indicates that a final decision by the trial court upon the case as made by the proceedings referred to was expected. While the exception specifies that the order and judgment is not supported by the law or the evidence, as there was no evidence except in the nature of conceded facts, the real meaning, we take it, is that the final result was not warranted by such facts. It follows from the foregoing that many of the points argued by appellants’ counsel must be considered as having been waived. All irregularities as to the alternative writ were waived by submission of the cause for final decision on the merits, as was also waived the privilege of pleading over and those parts of the return raising issues of fact, if there were any. So we pass to the question of law arising upon the conceded facts as the court properly understood them to be. The point is made that the proper remedy for respondent was by action, hence that the mandamus remedy was not available to him. That where one’s claim against a municipality has been allowed and nothing remains to be done to enable him to obtain his pay but to issue to him the proper warrant on the municipal treasury, he may proceed by mandamus to compel its issuance, in case of a refusal to do so, notwithstanding he may also, if he chooses, proceed by action, is not an open question. This court has repeatedly so held. Sharp v. Maus79 ton, 92 Wis. 629, 66 N. W. 803; Kraft v. Madison, 98 Wis. 252, 73 N. W. 775; Gutta Percha & R. Mfg. Co. v. Ashland, 100 Wis. 232, 75 N. W. 1007; State ex rel. School Directors v. Nelson, 105 Wis. 111, 80 N. W. 1105. In the last ease cited the court said: The authorities “do not deny, but recognize, that generally the enforcement of a debt or contract right to money against a public corporation must be by the ordinary processes of an action; but when all the purposes of such an action are accomplished by the voluntary act of the corporate body in conceding the debt and ordering payment, and the only obstacle is the refusal or neglect of- some officer to perform a ministerial duty, the creditor need not be driven to take the steps which would otherwise be necessary to establish his right against the corporation, but may have a writ against the individual officer to compel performance of the act enjoined on him by law. The writ serves, not as a substitute for a plain legal action, but as a supplement removing some obstacle by compelling performance of some ministerial act, expressly enjoined by law, necessary to render establishment of legal right possible or effective.” That sufficiently answers appellants’ contention at this point. It does not seem to be material whether respondent’s claim, as originally presented to the town board of audit and to the electors at the town meeting, was a legal demand or not, or whether it was competent for the electors to allow the claim if it was not a legal demand. The taxpayers having submitted to taxation for the purpose of paying the claim, recognizing a moral obligation at least to reimburse the respondent, and the amount specially levied for that purpose having been collected, he was entitled thereto regardless of whether he could originally have judicially enforced his claim. We know of no reason nor of any authority to support the contention that, after the taxpayers of a municipality have so submitted to taxation and the money has actually been accumulated in the hands of the public treasurer, [80] and neither the taxpayers nor the electors have, in any manner, changed their position, the officers, upon whom rests the mere ministerial duty of effecting such purpose, can legitimately raise the question of the legality of the demand the money was raised to discharge and delay or defeat the execution of such purpose. In Frey v. Fond du Lac, 24 Wis. 204, it was said, in effect, that though a valid claim is essential to the maintenance of an action against a municipality it does not follow that it is not the duty of such municipality to pay money actually raised to discharge a claim having no legal basis; that a tax voted and raised should he applied for the purpose for which it was raised. That must he so and fully justifies 'the decision of the trial court requiring the issuance of the order to respondent. The only other matter requiring attention is a claim that costs should not have been allowed against the supervisors personally. A mandamus proceeding is regarded as an action respecting the right to costs, the relator for that purpose being treated as the party plaintiff in a case like this. State ex rel. Risch v. Trustees, 121 Wis. 44, 98 N. W. 954. That costs, upon the relator’s recovering, go against the persons committing the wrong, as the supervisors in this case, is ruled by State ex rel. School Dist. v. Wolfram, 25 Wis. 468. By the Court. — The judgment is affirmed.