State ex rel. Saar v. Hundhausen , 26 Wis. 432 ( 1870 )

Paine, J.

This is an alternative mandamus, sued out by the clerk of the board of supervisors of Milwaukee county, to compel the treasurer of the city of Milwaukee to comply with the requirements of sec. 2, ch. 429, Priv. & Loc. Laws of 1870, by delivering to the relator all books in his office “ relating to the sales of land for taxes and the redemption thereof.” The object of the proceeding is solely to test the question whether the first two sections of that act can have effect. There seems to be no constitutional question involved. It was not urged, and hardly suggested, that they were invalid within the reasoning of this court in the case of The State ex rel. Keenan v. The Board of Supervisors of Milwaukee County. The questions are so different that that decision has no application here. The law there in question was held invalid for the reason that, by attempting to withdraw from the board of supervisors á material part of the established powers belonging to all boards of county supervisors in the state under the general law, and to confer it on special commissioners in a particular instance, it violated that provision of the constitution which requires the system of town and county government to be as nearly uniform as practicable. But the law now under consideration does not attempt to withdraw any of the powers of either town or county officers. It relates to a question between the county and city officers. And so far as the powers of the latter are concerned, the constitutional provision referred to has no application. There is no requirement of uniformity in the charters of incorporated cities. The only ground for supposing that that decision might be applied here, would be by saying that unless in all other counties in which cities are located, the county officers perform the same duties in respect to the sale and redemption of lands for taxes, which this act attempts to transfer from the city to the county officers in Milwaukee, then to make the transfer in that single county would disturb the uniformity of the county government. How the fact is in respect to the distribution of these powers between county and city officers, in those counties where cities are located, we have not inquired. However it may be, the principle of the decision in the case of the State ex rel. Keenan could hardly be carried to that extent. The power to incorporate cities being an independent power of the legislature, and there being no direct restriction against conferring on the officers of such cities any of the usual powers for collecting the public revenues within their respective limits, which the legislature may see fit, it would seem to be wholly unwarranted to create such a restriction by such an extreme application of the principle of that case as would be necessary to accomplish such a result. And it being a matter of legislative discretion, how far, in chartering a city, it will make use of the city officers for the collection of the revenues within the municipality, it is of course within its discretion to withdraw such powers once conferred, and restore them to the county officers, within whose jurisdiction the city, as well as all the towns in the county, is located.

The only other mode suggested of invalidating these sections of the act, was to hold them void for uncertainty. But the objections stated would not warrant'such a result. It was not claimed that they were not clear and intelligible as far as they go, but only that if carried out so far, some difficulties might arise for want of further provisions. It would be novel and dangerous ground for courts to enter upon, to assume the power of declaring the acts of the legislative department invalid for such reasons.

If an act is unintelligible, or if, by reason of some mistake or misapprehension as to existing laws or facts on the part of the legislature, a law cannot have effect, it may be so decided. But where its provisions are entirely clear, and capable of execution, it is not permissible for courts to assume the power of disregarding them, because some things may have been left unprovided for. Thus, the provisions of these sections being entirely clear in requiring the city treasurer to return all delinquent taxes and assessments to the county treasurer, and the latter to make all sales for such taxes and assessments, and in requiring the city treasurer to deposit in the office of the clerk of the board all books relating to tax sales, and that all redemptions should be made at the office of the clerk of the board, we could not hold them inoperative in these particulars, even though it were left uncertain who was to execute tax deeds, or how parties entitled to the money received on sales or redemptions were to obtain it.

But we do not think that any such uncertainty is left. On the contrary, by providing, as these sections do, that the delinquent city taxes are to be returned “ in the same manner and with like effect as town treasurers are required to do,” that the sales by the county treasurer shall be “ in the same manner and with like effect as in other cases of delinquent tax sales,” and that the redemption shall be made “in the same manner and with like effect as such redemp-tions are now made of sales made by the county treasurer,” they re-enact and make applicable to these officers the entire provisions of the existing laws referred to. And while we shall not attempt to anticipate all the questions that may be raised in respect to them, we may say generally that we have no doubt that the words “ with like effect,” used in this act, make it the duty of the same officer to execute tax deeds, whose duty it would be if the sale was of delinquent lands in a town; and that whatever moneys properly belonging to the city come into the hands of the county officers on sales or redemptions, should be accounted for and paid over as they would be if belonging to a town. The demurrer to the alternative writ must be overruled.

By the Court. — Demurrer overruled.