Matteson v. Town of Rosendale , 37 Wis. 254 ( 1875 )

RYAN, C. J.

The treasurer of the town which is the respondent here, collected a school district tax against the appellant by sale of his property The town clerk put the tax in question in the tax roll, solely on the authority of a certificate or statement of the clerk of the school district, that the annual meeting of his district had voted a tax, giving the amount, which the town clerk was directed to assess on the taxable property of the district. This certificate was verified by the oath of the district clerk, but contained nothing further, and was unaccompanied by any other paper.

The statutes governing the matter require the district clerk to deliver to the town clerk a statement, verified by his affidavit, showing the amount of tax voted by the district, together with a list of persons liable to tax therein; and require the town clerk to assess the tax upon the property liable thereto, when the certificate of the district clerk shall be received by him. Tay. Stats., ch. 23, §§ 65, 66. The authority of the town clerk rests, therefore, on the certificate of the district clerk; and the certificate is jurisdictional, and must follow the statute. The omission of the list of persons liable to tax, in this case, appears to us to be fatal to the authority to collect the tax.

It is said that the town clerk could make the list as well as the district clerk. Perhaps he might. But the list of persons is essential. All the property in the district may be liable to town tax, and not liable to district tax. See Tay. Stats., ch. 18, § 43, and ch. 23, §§ 66, 68, 70. School district tax rolls are to be made out, as far as possible, from the town assessment; but the town assessment cannot give all the data necessary to the school district assessment. Some officer must be charged with the duty of listing the persons liable to tax in the district. The town clerk cannot do it, ex officio, from the records of his office. It is a duty in pais. The statute appropriately imposes it on the district clerk. The town clerk might have done as well. Sed non ita lex scripta. He cannot, because the statute authorizes another officer, not him. And as the duty is essential and jurisdictional, the statute cannot be held to be directory. It is mandatory, and must be followed. Here it was wholly disregarded. And the certificate of the school district clerk is fatally defective to give authority to the town clerk to put the tax in the tax roll. The tax was illegally levied and collected.

The failure to comply with the statute affirmatively appearing, the prima facie presumption of sec. 178, ch. 18, R. S., is rebutted.

And the town, the respondent, is liable for the amount of the tax illegally assessed and collected by its officers. Matheson v. Mazomanie, 20 Wis., 191; Hurley v. Texas, id., 634; Phillips v. Stevens Point, 25 id., 594.

The first of these cases, decided in 1865, held the town liable only for so much of the illegal tax as was for the use of the town, and not liable for so much as belonged to state and county tax. It was probably in view of this rule that ch. 86 of 1870 was passed. The first section of this statute provides that any person aggrieved by the collection of an unlawful tax in any town, may recover against the town for all moneys so paid. It was urged for the respondent that, as the second and third sections of this statute make provision for refunding to a town illegal state and county taxes which the town is held to pay under the first section, and make none for refunding school district taxes, the latter are not included in the general provision. It may be that this is a casus omissus in the provisions for reimbursing the town, though that may not be altogether certain. But, if it be, it cannot restrict or defeat the broad provision of the first section, for the recovery “of all moneys so unlawfully levied and collected.” Whatever difficulty the town may have of reimbursing itself, it is certainly made liable for all illegal taxes collected by it, without except tion. We cannot reason away the plain letter and purpose of the principal provision of the statute, Or defeat it by argument ab inconvenienti.

It is said that the appellant might have recovered of the school district. That is, perhaps, not so certain as that the respondent may. Town of Ripon v. School District, 17 Wis., 83. But, if that were so, it only goes to show that he'had another remedy, not that he has not this.: ■ ,

By the Court. — The judgment of the court below is reversed; and the cause remanded for-a new' trial.