Lenz v. Charlton , 23 Wis. 478 ( 1868 )

DrxoN, C. J.

It is very clear that this is not a case where equity will interfere by injunction to restrain the proceedings. They were proceedings instituted under section' 105, chapter 18, R. S., to compel the payment into the county treasury of taxes collected for the county by the treasimer of the city of Madison, who was in default; and the warrant was levied by the sheriff on the personal property of the plaintiff, Lenz, who was one of the sureties of the city treasurer. In respect to the injuries complained of, therefore, the action is not distinguishable from those of Van Cott v. Board of Supervisors of Milwaukee Co., 18 Wis. 247; Cramer v. The Oiiy of Milwaukee, id. 257; and Chicago & N. W. Railway Co. v. The Borough of Ft. Howard, 21 id. 44; and it must be governed by the same principle. The plaintiff has an adequate remedy at law to recover his damages, and to that remedy he" must resort.

The other question, as to the constitutionality of the statute under which the wai’rant was issued, is not in strictness before ,us for consideration. It is not a question in the case, nor involved in its decision, and I always feel the greatest hesitation in expressing an opinion which is merely obiter. It is a practice which cannot be justified except under very peculiar circumstances, and even then the opinion goes for nothing, according to correct rules for the interpretation of judicial decisions. Tet, as the question was pressed upon our attention by counsel for both parties, and an expression of opinion asked, and as it is a question of very considerable importance to the parties, and especially to the defendant Gharlton, who is a public officer, and feels himself obliged to carry out the requirements of the statute, we have examined it and are prepared 'to give an opinion upon it. ~We are prepared to say, for the benefit of the parties to this suit — for we can go no further — that in our opinion so much of the statute as authorizes or attempts to authorize the issuing of the warrant in such cases against the property of sureties of the town treasurer, is unconstitutional and void. The constitutionality of the statute so far as it authorizes the issuing of the warrant against the town treasurer, is undoubted. This is fully established by the several decisions referred to by counsel for the defendants, and to which many others might be added. The principle upon which these decisions rest is, that funds belonging to the government in the hands of any citizen who has' made default in not paying them over, may be collected by this summary process without the intervention of a jury.- The principle is founded upon an imperative public necessity that the government or sovereign authority should' be able to control the funds of which it is the owner, without the uncertainties, vexation and delay which attend the investigation and trial of causes in courts of law. The statement of the principle, and of the reason on which it is founded, at the same time shows the extent of its application. It is limited to the collection of funds in the hands of a citizen, of which the government is in fact owner, and as such includes moneys due froni a defaulting tax payer, tax collector, receiver or depositary of public moneys, or other financial agent of the government, whose liability may be thus summarily enforced without the intervention of a jury, by process in the nature of an execution to be forthwith issued against him, and which liability constitutes an exception to the right of trial by jury as guarantied by the constitution. In our examination of the authorities, we have met with no case in which the distinction between a liability of this nature and one upon contract with the government, was noticed, or where it became necessary to notice it, except in Tift v. Griffin, 5 Ga. 185, 193, and one other case before the same court. Nearly all of them were cases falling within the principle above stated, like that of Murray’s Lessee et al. v. Hoboken Land & Improvement Co., 18 How. (U. S.) 272, cited by counsel. But in Tift v. Griffin the question here presented was involved, and the court, in an opinion of very marked ability and learning, held that a liability uj>on contract, and not for money wrongfully withheld by a tax payer or tax collector, or other financial agent, could not be enforced by this summary process. We commend the opinion in that case as in our judgment a correct exposition of the law upon the questions under consideration. It is true, that in the subsequent case of Bassett v. The Governor, 11 Ga. 208, a similar question was presented with apparently the very opposite decision. The latter was a case, like the present, of an execution issued against a tax collector and his sureties under a statute of the state; ’ and the opinions in both cases were written by the same learned judge. It seems very strange that, though the objection of unconstitutionality was taken by counsel, it did not arrest the attention of the court. It was not alluded to at all in the opinion, nor was the former decision cited or 'mentioned by court or counsel. It seems impossible for us to perceive how the two cases can be distinguished, or the decisions reconciled; and we can account for the latter only on the supposition that the objection was entirely overlooked by the court. It must have been so, or else something would have been said either explaining or qualifying the former decision, or overruling it. The liability of the sureties is clearly a matter of contract between them and the public authorities, and not a liability growing out of any neglect or default on their part in not paying over moneys in their hands belonging to the government, which last constitutes the only true foundation upon which summary process of this kind may be constitutionally issued against the persons therein named.

It follows from our views of the first question above discussed, • that the judgment of the circuit court must be affirmed, though, if the last had been the question actually involved, the decision must have been the other way.

By the Court. — Judgment affirmed.