State v. Casey , 5 Wis. 318 ( 1856 )

By the Court,

Cole, J.

This suit was instituted by William S. Hawkins, in behalf of the state, to recover of the defendant in error, certain moneys, alleged to have been received by him, as sheriff of Waukesha county, on fines imposed by justices of the peace, upon conviction of persons for criminal offences. The declaration contains two counts; the first of which alleges, that Casey, while he was sheriff of Waukesha county, received divers large sums of money (specifying a number of sums which had been collected, upon fines imposed upon various individuals mentioned, who had been convicted of criminal offences before magistrates), to the amount of $500, the proceeds of which belonged to the school fund of said state; and that by virtue of an act of the legislature, approved April 8,1854, entitled, “An act supplementary to an act to provide for the more speedy collection and payment of fines, forfeitures and penalties, remaining in the hands of justices of the peace,” the plaintiff avers, that William S.' Hawkins was duly and lawfully appointed by the governor of the state, an agent for the district composed of Waukesha county, •to call for, demand and receive, and, when necessary, sue for and collect, all moneys theretofore or thereafter paid to, or received by any county or town officer, or other person in said district, on account of any fines, penalties or forfeitures, tbe proceeds of wbicb. belonged to tbe school fund, or tbe state treasury, and wbicb bad not been paid oyer by sucb officer witbin tbe time required by law. And tbe plaintiff further averred, that Oasey having failed to pay over said sums of money, as required by law, said Hawkins, by virtue of tbe statute, at various times demanded said moneys of him, and that be failed to pay them to said Hawkins, or to any other person lawfully authorized to receive them on behalf of tbe state.

Tbe other count of tbe declaration is a general one; that Casey, at Waukesha, once received a certain other sum of $500, for tbe use of tbe plaintiff, to be paid on request, with tbe usual breach.

To this declaration, tbe defendant interposed a demurrer, assigning tbe following as causes of demurrer:

“ 1. It does not appear in and by said declaration, that tbe said defendant has received any money belonging to tbe state of Wisconsin, nor what part or portion of any moneys in bis bands belongs to tbe state.

“2. It does not appear in and by said declaration, that any moneys in tbe bands of tbe defendant belong to tbe state treasury, or to tbe school fund of tbe state.

“ 3. It does not appear therein, that tbe ‘ clear proceeds ’ of any fines, alleged to have been received by tbe defendant, have been determined, or set apart by any tribunal, or any law of this state, to be paid into tbe ‘'school fund.’

“ 4. It does not appear therein, that tbe state of Wisconsin has, or can have any right of action in tbe name of tbe plaintiff in this suit, for any moneys alleged to have been received by tbe defendant.

“5. It does not appear .therein, that any demand has been made upon tbe defendant, for any moneys belonging to tbe state or to tbe ‘ school fund.’ ”

“ 6. It does not appear that tbe said William S. Hawkins, tbe pretended agent of tbe said plaintiff, bad any right to demand of or receive from tbe defendant tbe moneys alleged to be in bis bands, or to commence this suit.

“ 7. It does not appear for wbat purpose or object tbe moneys mentioned in tbe second count in said declaration, were received ' by tbe defendant, nor from wbom, or on wbat account tbe said moneys were received by bim, nor in any other manner is it stated by wbat right tbe said plaintiff is entitled thereto, nor by wbat right be, tbe said Hawkins, has instituted this suit for tbe moneys mentioned in said second count; and for other infor-malities, &c.”

Tbe Circuit Court sustained tbe demurrer, and this ruling is assigned for error here.

We are unable to concur in tbe opinion of tbe Circuit Court, bolding tbe declaration bad, for any or all tbe objections taken to it. Section 2 of article 10 of tbe constitution, provides wbat shall constitute tbe school fund of this state, and makes “ tbe clear proceeds of all fines collected in tbe several counties for any breach of the penal laws ” a part of this school fund. Now, all that it appears necessary to say upon tbe 1st, 2d, 4th, 5th and 6th causes of demurrer, is to remark that the first count in tbe declaration does distinctly allege that tbe defendant has received certain moneys collected on various fines imposed in Waukesha county for breaches of tbe penal laws of the ■ state; that these moneys belong to tbe school fund, and that be has refused to pay them over to a person authorized by law to receive them.

That tbe action is properly brought in tbe name of tbe state, we think there can be no doubt. Tbe clear proceeds of tbe money collected from fines belonging to the school fund, are a part and parcel of it; and is argument needed to demonstrate that tbe school fund belongs to tbe state ? We suppose, then, tbe state, to wbom this money rightfully belongs, is tbe proper party to sue for it, in tbe absence of statutory provisions, directing tbe suit to be instituted in tbe name of some officer, or corporation, or citizen. The declaration alleges that Hawkins was duly authorized by law to receive tbe money, and tbe effect of tbe demurrer is, to admit that fact and all others well pleaded.

As to tbe 3d objection, that it does not appear from tbe declaration that the “ clear proceeds” of any .fines alleged to have been received by tbe defendant, bad been determined or set apart by any tribunal, or any law of this state, we do not think such fact needs be set forth, in the declaration. Whether the act of April 3, 1854, or of Pebruary 21, 1851, or any other act in force in the state determines what shall be the “ clear proceeds ” of moneys arising from fines for breaches of the penal laws, may become a matter-of- inquiry upon the trial of the cause. That question does not fairly arise at this stage of the suit.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings according to law.