Montague v. Horton , 12 Wis. 599 ( 1860 )

By the Court,

DixON, C. J.

Tbe record in this case embraces two appeals from two orders, made by tbe county court of tbe county of La Crosse. ■ One was an order overruling tbe appellant’s motion for an order to dissolve an order for a temporary injunction, which bad previously been made in tbe case, upon tbe facts set forth in tbe complaint, accompanied by a verification in tbe usual form, and the other an order overruling tbe appellant’s demurrer to tbe complaint. Tbe causes of demurrer assigned, were: First, tbat it on tbe face of tbe complaint tbat tbe court bad no jurisdiction of tbe action; and, second, tbat tbe complaint did not state facts sufficient to constitute a carrse of action. Tbe complaint is somewhat lengthy, but tbe facts alleged in it, and which are necessary for a proper understanding of tbe questions raised, may be comprehended in a few words. Tbe appellant is tbe treasurer of tbe county of La Crosse, and tbe respondent tbe owner of sundry orders issued by tbe proper authorities of tbat county, and which are evidences of an indebtedness from tbe county to him as tbe bolder, in tbe several sums therein specified. These orders, which are ten in number, and amount in tbe aggregate to tbe sum of $700, were issued in tbe months of March, June, July and August, 1859, to one Alexander W. Shepard, or bearer, and are in tbe usual form of such instruments, except tbat tbe treasurer of tbe county, to whom they are directed, is required to pay them out of tbe unappropriated money belonging to tbe county for jail purposes. Tbe complaint shows tbat they were all presented for payment, and payment demanded of tbe defendant, as such treasurer, on or before tbe 2d day of December, 1859, and tbat, payment thereof having been refused, they were severally, on and before said last mentioned day, placed on file with tbe treasurer, and thus remained until tbe time of tbe commencement and bearing of this action. It further appears tbat no part of tbe money due upon them has ever been paid or offered to tbe respondent. It is not averred tbat there were, at tbe time such orders were so presented for payment, nor tbat there have been at any time since they were so placed on file, any moneys in tbe bands of tbe respondent which were properly applicable to their payment and liquidation; but it is alleged as a reason why no such moneys have come into bis bands as treasurer, and as a substantive ground or cause for maintaining this action, tbat tbe appellant, as treasurer, bas, during tbe time said orders have so been on file, been guilty of certain continued acts of official misconduct or malfeasance, which have resulted in preventing tbe receipt of tbe ordinary income and revenue of tbe county, and in . keeping tbe treasury continually empty. This misconduct is charged to bave occurred in tbis wise. It is said that at the time of making tbe complaint, tbe treasurers of tbe several towns bad made return to tbe county treasurer, of tbe delinquent taxes in their respective towns, .assessed in tbe year 1859, and that those taxes, so assessed and returned, and then in tbe bands of tbe county treasurer for collection, amounted to at least $9,000. It is also said that large quantities of land in said county were sold by tbe treasurer thereof, in tbe years 1857, 1858 and 1859, for tbe delinquent or unpaid taxes assessed thereon for tbe year preceding such sales respectively, and that of such lands a large portion was bid off by and in tbe name of tbe county, and certificates thereof issued to the county, and that of such certificates a large number were owned and held by tbe county at tbe time of tbe filing of tbe respondent’s said orders, and that many of them were still, at tbe time of tbe institution of tbis suit, so held and owned. Tbe plaintiff then proceeds to allege, by way of laying tbe foundation for a perpetual as well as a temporary injunction, that tbe principal or only sources of revenue of said county, by which its treasury can be replenished and tbe necessary funds accumulated therein, with which to pay bis said orders, are tbe moneys which are drre and unpaid to it for said taxes and upon such tax certificates ; but that tbe defendant, as such treasurer, instead of demanding and receiving tbe cash in payment of such delinquent taxes, so far as tbe same were levied and assessed for county purposes, and instead of requiring a like cash payment upon tbe redemption, sale or transfer of such certificates of sale, has been in tbe habit, during all tbe time said orders bave so remained on file, and still is in tbe habit and practice, from day to day, and week to week, and so often as be is applied to for that purpose, of receiving such payments in tbe outstanding, unfiled orders of said county, without regard to tbe date or time of their issue, or tbe purposes for which they were given; and that, in pursuance of such practice, be has so received in payment many orders of like tenor and effect of those held by the plaintiff, and which were issued to the said Alexander W. Shepard, and which were never otherwise presented for payment, or placed on file with _ him. The complaint closes with a prayer for a temporary injunction, and that on the final hearing a perpetual injunction may be awarded, restraining the defendant, his agents, attorneys, counsellors, deputies, successors, &c., from receiving such outstanding unsatisfied orders in payment of any part of said delinquent taxes, or in redemption, or for the transfer or sale, of said tax certificates, until moneys sufficient to satisfy the orders of the plaintiff, according to their dates and priority of filing, shall have been paid and received into the treasury of said county.

The first objection of the appellant’s counsel, that the orders described in the complaint are drawn payable out of a particular fund, viz: the unappropriated money belonging to the county for jail purposes, and that therefore the promise to pay is contingent upon the sufficiency of that fund, seems to me not to be well taken. Upon examination of the statute, I find no authority for the creation of separate or distinct funds out of the revenues or moneys belonging to the county. By law all money belonging to the county as such, and not coming into its hands in the capacity of trustee, is treated as one fund, out of which all its liabilities are to be discharged. This intention is most plainly indicated by the provisions of sec. 129, chap. 13 of the Revised Statutes, which provides that “ county orders properly attested,” (thereby, of course, meaning and including all county orders), “ shall be entitled to a preference as to payment according to the order of time in which they may be presented to the county treasurer,” except that where two or more orders are presented at the same time, that shall be first paid which is of the oldest date; and provided that the county treasurer- shall receive from town treasurers all county orders issued by said county, in payment of the county taxes collected in such town by the town treasurer, in the year for which such orders are offered in payment. If it be conceded that the instruments in question are the orders of the county of La Crosse — -and this was not denied or disputed — then I do not see how, under the operation of this section, their payment, according to the or(^er by and out of any funds properly belonging to tbe county, could well be refused. It could only be done on the hypothesis, which was not claimed or insisted upon, that the addition of the words “for jail purposes,” destroyed their character and existence as orders. There being no authority to establish a separate fund, and these orders being payable, if at all, out of the general fund, those words must be understood, not as a limitation upon the liability of the county, but as descriptive of the purpose for which the order was drawn, and as introduced, in order the better to enable the officers of the county to regulate and adjust its financial affairs.

Upon the question of the jurisdiction of a court acting as a court of equity, to grant a permanent injunction in a case like the present, where such injunction is the only relief demanded in the complaint, it seems to me very clear, if the court is to be governed by the law as it existed and was administered prior to the adoption of the Code of Procedure, that it has no such power or jurisdiction. By the law as it then stood, it was well settled that a court of chanceiy would interfere, by injunction or otherwise, to restrain or control the proceedings of subordinate tribunals, or the official acts of public officers, in but two instances. The one was where such proceedings or acts affected real estate, and would lead to irreparable injury to the freehold, or to the creation of a cloud upon the title, which the court, if called upon, would remove; and the other, where they would lead to a multiplicity of suits. In the one case the court would interfere to stay the mischief; and in the other, to avoid vexatious a;id excessive litigation. Mayor of Brooklyn vs. Meserole, 26 Wend., 132. It is very evident that the present case falls within neither of these heads of equitable jurisdiction. In the case of Mooers vs. Smedley, 6 John. Ch. R., 28, where a bill was filed to enjoin the collector of a town from collecting a tax, and the supervisor from paying over the same when collected, on the ground that the board of supervisors had levied it in direct violation of law, Chancellor KENT observed : “ I cannot find, by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control tlie determination of the supervisors, in their examination and allowance of ac-. counts as chargeable against their county, or any of its towns,” but that “ the review and correction of all errors, mistakes and abuses in the exercise of the powers of subordinate public jurisdictions, and in the official acts of public officers, belongs to the supreme court. In my opinion, it belongs exclusively-to that court. It has always been a matter of legal and never a matter of equitable cognizanceand that “ in the whole history of the English court of chancery, there is no instance of the assertion of any such a jurisdiction as is now contended for.” See also Wiggin vs. The Mayor, 9 Paige, 16; and Van Doren vs. Same, id., 368.

Upon the point that the Code has not enlarged, or in any respect changed, the power of the court to grant injunctions in cases of this kind, I am equally well satisfied. The only provision from which any such enlargement or change can be claimed, is that found in section 2 of chap. 129 of the Revised Statutes, transcribed from sec. 219 of the Code of New York, and is in these words: “ Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or where, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. And when, during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction maybe granted to restrain such removal or disposition.” It is very clear that the remedy here given, and which is extended to all actions, whether they be such as were heretofore denominated legal or equitable, is temporary and provisional in its nature, and designed to pass away when the litigation itself ceases by the rendition of a final judgment in tbe action. It is also clear, that no new or enlarged rights are conferred upon tbe plaintiff, but that it only enlarges the powers of tbe courts to grant injunctions, in cases where, by tbe complaint, it appears that be is entitled to tbe relief demanded. In determining whether be is entitled to such relief, or whether or not be sets forth a good cause of action, we are to look to the law as it was previously understood and expounded. The legislature have not attempted to change or modify the law which fixed and governed the right, but that which concerned the remedy only. And if, by the law as heretofore established, the plaintiff had not the right to a perpetual injunction in a case like the present, then he has not now. Nor does the fact, that by the Code all distinction between the forms of legal and equitable proceedings has been abolished, and that they have been blended into one general, harmonious system, nor that the legal and equitable powers aré now united in, and exercised by, the same courts, at all affect the question. In so doing the legislature has not obliterated or destroyed the limits which were heretofore set to those powers, and by which they were distinguished and defined, and their exercise circumscribed. We cannot therefore substitute an equitable for what was heretofore purely a legal remedy, or the opposite. We cannot make the writ of injunction perform the functions of a mandamus or action on the case.

The objection that the plaintiff is merely a creditor at large, or before judgment, of the county of La Crosse, and therefore not entitled to the interference of the court by injunction, is, in my opinion, equally fatal to the present proceeding. The authorities cited by the appellant’s counsel to this point, abundantly establish, that before judgment and execution issued and returned unsatisfied, such general creditor cannot in this manner question or control the debt- or’s disposition of his property, upon the ground of fraud or otherwise. He must complete his title at law, by judgment and execution, before he can interrupt the debtor’s general rights to dispose of and control his property. In respect to the powers of a court of equity, the county, in the absence of any inconsistent statutory regulations, would occupy the same position as a natural person, and although it might be inequitable and unlawful for it to violate or disregard preferences given by statute, that court could not interfere. The plaintiff must resort to the remedies given by law.

, „ , Both the orders of the county court must be reversed, and the cause remanded for further proceedings in accordance with this opinion.