Smith v. Grimshaw

Rosenberry, J. The collection of taxes is dealt with in ch. 74, Stats. 1923. By the provisions of sec. 74.15 the town treasurer is required to retain in his hands the amount specified, in his warrant, to be paid into the town treasury, and shall on or before the day specified in his warrant pay to the county treasurer the sum directed to be paid in the manner provided by law, and the town treasurer is required to pay over the full amount of the state tax on or before the first Monday of March of each year “though it may occasion a deficiency in the town, city or village taxes.” Sub. (2) provides: “Out of the taxes collected the treasurer shall first pay the state tax to the county treasurer, and shall then set aside all sums of money levied for school taxes, then moneys levied, for the payment of judgments, then all sums raised as special taxes in the order in which they are levied, then taxes for the payment of principal and interest on the public debt, then taxes for bridge purposes, then for fire purposes, then for streets and other public improvements, and lastly county taxes.” By sec. 74.17 it is provided that “If the treasurer shall be unable to collect any taxes within the time prescribed by law he shall make out a statement of the taxes so remaining unpaid, distinguishing, by setting down separately, real estate, personal property, and income taxes, with a full and perfect description of such real estate from his tax roll, and the name .of the person taxed, if [357] therein specified, and by setting down separately all public lands which are held on contract and all lands mortgaged to the state, and submit the same to the county treasurer. . . . The county treasurer shall carefully compare such statement, when submitted, with the tax roll and ascertain that it is correct.” Sec. 74.18 prescribes the form of the return. Sub. (1) and (2) of sec. 74.19 prescribe the details for the completion of .the return and certain penalties for the failure of the town treasurer to comply with the law. Sub. (3) provides: “All taxes so returned as delinquent shall belong to the county and be collected, with the interest and charges thereon, for its use; and all actions and proceedings commenced and pending for the collection of any personal property tax shall be thereafter prosecuted and judgments therein be collected by the county treasurer for the use of the county; but if such delinquent taxes, exclusive of the penalty provided by section 74.23, exceed the sum then due the county for unpaid county taxes such excess,.when collected, with the interest' and charges thereon, shall be returned to the town, city or village treasurer for the use of the town, city or village.” Sec. 74.23 provides certain penalties for the failure or neglect of the town treasurer to pay to the county treasurer the sums in his hands required by law to be paid to him. The theory of the cross-complaint seems to be that there should be apportioned among the several municipalities the amounts collected by the county from the delinquent tax rolls, and that upon such an apportionment the county of Jackson would be found to be indebted to the town of Bear Bluff, and the town of Bear Bluff to the plaintiff as treasurer of the school district. The plaintiff has not appealed, so that • the matter as between the school district and the town is not before us. An effort is made to bring the case within the rule of Marinette v. Oconto County, 47 Wis. 216, 2 N. W. 314, and Iron River v. Bayfield County, 106 Wis. 587, 82 N. W. [358] 559. In Iron River v. Bayfield County it was sought to sustain the contention that when the county purchases lands at a tax sale it amounts to a payment of the tax, and that the county is thereupon required to settle with the town as if the tax had in fact been paid in money; but the contrary was held, and it was said that the purchase of the lands at a tax sale was simply a step in the process of collection and not the collection itself; that there was no collection until the money had been in fact received. In Marinette v. Oconto County, supra, it appears that the Statutes of 1858 authorized the acceptance of county orders equal to the amount of county taxes owing by the person presenting them, and it was held that when so presented and accepted by the town treasurer that the orders were paid. The court said: “Having come to the conclusion that county orders received by a town treasurer in payment of county taxes, when so received, belong to the county and not to the town, and that the town treasurer cannot hold them for the use of the town, but must deliver them to the county treasurer in his settlement with such treasurer, it becomes unnecessary to consider the other questions which were discussed.” In the course of the discussion, however, the court made the following statement: “If the town treasurers do' not collect money and town orders enough to pay the state and town taxes, the town will have a claim for the balance against the county when the 'same is collected under the provisions of sec. 1114; and if they cannot be collected by the county, there would seem to be no injustice in saying that the loss should fall equally on the town and county, instead of on the county alone.” While there may be no injustice in saying so, we find no authority whatever in the law to. support the proposition that as between the town and the county, after the delinquent return has been made by the town treasurer, that any sum [359] will thereafter become due to the town treasurer until a sufficient amount has been collected thereon to satisfy the claims of the county, for by the language of sub. (3) of sec. 74.19 it is only “such excess, when collected, with the interest and charges thereon, shall be returned to the town, city or village treasurer for the use of the town, city or. village.” It is quite clear that the statute does not contemplate a situation such as is presented by the facts in this case; that is, that the land shall in fact be worth less than the amount of taxes assessed against it, or, in the language of the cross-complaint, “the land shall be of no value.” This court cannot legislate, and while the situation presented by the pleadings in this matter appears to work a hardship to the towns involved, if relief is to be had it must come through the legislature. The county has apparently followed literally and exactly the directions of the statute. By the Court. — Judgment affirmed.