Reichert v. Milwaukee County

Tijmliet, J. These cases are argued by counsel for respondents and seem to have been decided by the court below upon the hypothesis that a county which is party to a land contract is under the same liability to pay interest as damages for delay as is a natural person under similar circumstances. This is erroneous. Indeed, there is a respectable array of authority to the effect that a county, being merely an arm or agency of the state, has, at least when carrying out a function of the state, the same exemption from liability for interest as has the state. Seton v. Hoyt, 34 Oreg. 266, 55 Pac. 967, 43 L. R. A. 634, 75 Am. St. Rep. 641; Garland Co. v. Hot Spring Co. 68 Ark. 83, 56 S. W. 636; Clay Co. v. Chickasaw Co. 64 Miss. 534, 1 South. 753; National Bank v. Duval Co. 45 Fla. 496, 34 South. 894; Madison Co. v. Bartlett, 2 Ill. 67, and subsequent Illinois citations. — 33 — Our court, however, has never gone so far, but has recognized the liability of a county to pay interest as damages in certain cases. In Alexander v. Oneida Co. 76 Wis. 56, 45 N. W. 21, it was held that proof of neglect to pay a county order after a proper demand and refusal did not authorize a court to award interest as damages against a county. In Land, L. & L. Co. v. Oneida Co. 83 Wis. 649, 53 N. W. 491, it was held that the county board might allow the towns in that county interest' on the amounts due to such towns from the county. In Mueller v. Cavour, 107 Wis. 599, 83 N. W. 944, interest against a county was denied on a county order. In Rice v. Ashland Co. 114 Wis. 130, 89 N. W. 908, interest was allowed against the county in an action for money had and received. In Spooner v. Washburn Co. 124 Wis. 24, 102 N. W. 325, interest was allowed after demand and refusal in an action upon an account by a town against the county. In Rider v. Ashland Co. 87 Wis. 160, 58 N. W. 236, interest against a county was allowed sub sileniio. In Quigg v. Monroe Co. 134 Wis. 122, 113 N. W. 723, the question is left in doubt. In Voigt v. Milwaukee Co. 158 Wis. 666, 149 N. W. 392, where a statute authorized a recovery of damages against a county, it was held that this carried interest on such damages from the time when inflicted. The legal character of a county is set forth and prior decisions in this state bearing upon the subject collected in Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798. 1 Dillon, Mun. Corp. §§23 and 25, is quoted in support of the following: “They are purely auxiliaries of the state; and to the general statutes of the state they owe their creation, and the statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all liabilities to which they are subject.” The last member of this compound sentence is not strictly accurate. If it were it would dispose of this case at .once, for there is no statute imposing any liability upon the county for interest in such case. Sec. 686, — 34 — Stats., requires claims against the county to be allowed by the county board, which shall direct a county order to be drawn on the treasurer in favor of the claimant. No such order, except for the per diem and mileage of the members of the board, is to be drawn within five days after the allowance, of the claim, and no interest shall ever be paid by any county on its orders. Sec. 685 provides that upon trial in the circuit court of an appeal'from a resolution of the county board rejecting a claim, no interest' shall be recovered by the plaintiff upon any sum allowed by the county board and for which orders were drawn. Sec. 616 provides that no action shall be brought or maintained against a county upon any account, demand, or cause of action when the only relief demandable is a judgment for money, unless the county board shall consent and agree to the institution of such action, or unless such claim shall have been duly presented to the board and the board shall have failed to act upon the same within the time fixed by law. But it is therein provided that no action shall be brought upon any county order until the expiration of thirty days after a demand for the payment thereof has been made. Because another statute requires that all judgments bear interest, and apparently in order to prevent transforming a county order into a judgment so as to make it bear interest, it is further provided that if an action be brought on a county order and the county fails to appear and there is no proof of such thirty-day demand, the court, or the clerk thereof, shall not permit' judgment to be entered, and if judgment be entered thereon the judgment shall be absolutely void. . It was said in Mueller v. Cavour, 107 Wis. 599, 83 N. W. 944, that interest is not recoverable upon town or county orders, the former by common law, the latter by common law and statute. Town orders have been considered in Packard v. Bovina, 24 Wis. 382; Brown v. Jacobs, 77 Wis. 29, 45 N. W. 679 ; and Marvin v. Jacobs, 77 Wis. 31, 45 N. W. 679. These statutes and decisions furnish very significant indi — 35 — cations that a county, with reference to liability for interest, is not on a par with a natural person or with a private corporation. In the case of a natural' person failing in a suit for rescission, as this county did in Neacy v. Milwaukee Co. 144 Wis. 210, 128 N. W. 1063, equity would have closed the controversy then and there by, decreeing a recovery of the purchase money with or without interest, as the case might be,, and the question of the liability of the purchaser for interest would in that suit have been finally adjudicated. There are essential differences between a county and a private corporation or a natural person relative to liability for interest or damages which cannot be disregarded. The county acts through its officers as agents, but agents not of its own choice or creation. These officers are agents who represent the county in the transaction, but have their authority conferred and limited by act of the state through its legislature. Each has his appointed field of action, not created, limited, or expanded by act of the county or by usage or by contract obligations. Within the scope of the authority conferred by the legislature the county, through its board of supervisors, may by its acts arouse official action and official duties upon the part of other county officers, but the powers of the latter derived from the state legislature may not be taken away or narrowed by action of the county board nor enlarged except in cases in which the legislature has authorized such limitation or enlargement. Eor illustration: Although the county board is given power to contract and to authorize and require the making and delivery of county orders, and the duty of the county clerk in signing and delivering such orders is ministerial (State ex rel. Treat v. Richter, 37 Wis. 275), the clerk may refuse to sign and deliver an order not legally authorized (State ex rel. Mulholland v. County Clerk, 48 Wis. 112, 4 N. W. 121), and if he fail to take objection in such case the treasurer may refuse to pay such order after it is issued and delivered (Doyle v. Gill, 59 Wis. 518, 18 N. W. 517). — 36 — Every ministerial officer in the performance of purely ministerial acts is required, at his peril, to interpret the statute, or the order made in pursuance thereof, imposing' a duty upon him and calling for action on his part. His decision if erroneous does not exempt him from liability in an action, but his decision if correctas sufficient to defeat an ‘action against him. When on December 23, 1907, the tender of conveyances with abstracts brought down to date and the five-months-old approval of the district attorney was made to the county clerk and a county order demanded, he had two reasons for refusing to issue it, each of which was sufficient. (1) He knew of the taxpayer’s suit about to be commenced against him and against the vendors, and the county and he was under no obligation to join in a scramble to get out this county order ahead of the taxpayer’s suit, but might take a reasonable time to investigate and take counsel in the matter. One day’s time for that purpose, would not be unreasonable. (2) He had a right to interpret and did interpret correctly the resolution of the county board requiring the approval of the district attorney. This condition of his issuing the order was not satisfied by an approval five months old, even though the abstract were continued down to date. There must have been a certificate of its continuance down to date which the district attorney had never seen. The clerk was not' obliged to take the chances of the death, marriage, or insanity of one of the grantors occurring during the five months in question and not yet made a matter of record. Hor was he required to fake the chances of unrecorded conveyances to purchasers in possession who might have come in during said five months. He was not required to pass upon the sufficiency of the certificate of the abstractor made and annexed since the district attorney had seen the abstract and relating to the abstract as brought down to date. The responsibility of determining the sufficiency of the title was by the resolution of the county board not cast on him but upon the district attorney. The — 37 — statute made the district attorney the advisor of the board. Sec. 152, Stats. The county board had power to purchase this land, to be paid for subject to the district attorney’s approval of the abstract of title and the conveyances. The clerk promptly sought the advice of. the district attorney, and the latter on December 28, 1901, refused to approve the title or conveyance on account of the then pending taxpayer’s action. This was sufficient ground for the refusal of the district attorney to approve of the abstract of title and the tendered conveyance. The respondents having failed to present to the county clerk such approval by the district attorney as the resolutions of June 25th and December 11th, properly interpreted, required, were not entitled to a county order at that time, and the county was not in default or liable to pay interest as damages. The county had discretion to withhold approval, acting in this through the district attorney. It is also noteworthy that if the respondents had received the county orders demanded on December 23, 1901, they could collect no interest on such orders and could not Sue on them for thirty days, and then would have to meet the taxpayer’s suit for a rescission. This alone would show the judgments appealed from to be erroneous, at least as to thirty days’ interest. But we prefer t'o rest the case on the broader ground that the respondents failed to comply with the resolution of the county board properly interpreted, and procure an approval of the district attorney such as those resolutions required. This will result in the dismissal of Zautcke s case with costs. The county was not in défault, hence cannot be required to pay interest as damages. The Reichert claim in part rests upon slightly different grounds. As to the interest on $35,000 of his claim it is identical with the Zautcke claim. These resolutions requiring approval by the district attorney were contained in and part of the resolution of the county board accepting the offers of Zautcke and others and Reichert. There was therefore no performance upon the part — 38 — of either of those vendors until they complied with these resolutions. As to Reichert the first resolution reads as follows:' “That upon the approval by the district attorney of abstracts of title to said lands, offered by the said Conrad K. Reichert, and of the form of conveyance of said lands to said county, proposed to be made by him, and proper tender of said conveyance duly executed by said Conrad R. Reichert, a county order in due form to be delivered to said Conrad R. Reichert, or his properly authorized .attorney, for the sum of thirty-five thousand ($35',000) dollars be, and that the further sum of twelve thousand three hundred and twenty ($12,320) dollars be paid' to said Conrad R. Reichert on or before March 1, 1908, with interest at four per cent.” The payment of this sum as well as the delivery of the county order was conditioned upon the approval of title and conveyance by the district attorney, as stated. This approval was not obtained as stated, nor an abstract and conveyance with such approval tendered, nor was the approval unlawfully withheld, hence the $12,320 with interest thereon at four per cent, did not become due to Mr. Reichert on December 21, 1901, or' at any time prior to the disposition of the taxpayer’s suit. It follows that the judgment in favor of Reichert must also be reversed with costs and his case dismissed. By the Court. — It is so ordered. Siebeckee, Keewin, and Bashes, JJ., dissent.