#### State ex rel. Pabst Brewing Company, Respondent, vs. Kotecki, City Comptroller, Appellant.

*September 15*

October *3, 1916.*

*Appeal from order: Stay of proceedings:*Mandamus: *Interlocutory judgment: City comptroller: Refusal to countersign warrant.*

1. An order refusing to quash a writ of *mandamus,*overruling a demurrer to the relation, and giving the defendant time to plead over, is such an order as is contemplated by sec. 3060, Stats., and an appeal therefrom does not operate to stay proceedings except as provided in said section.

2. See. 925 — 269m, Stats., — exempting city officers, in actions against them in their official capacity, from giving bonds on appeal,— does not operate to stay proceedings pending an appeal in such an action unless a stay is specifically ordered by the court.

3. Where, pending an appeal from an order overruling a demurrer to the relation and refusing to quash the alternative writ, in a *mandamus*proceeding to compel the city comptroller of Mil- . waukee to countersign a warrant for the refund of excessive taxes, the circuit court entered an interlocutory judgment awarding the peremptory writ and commanding the comptroller to countersign the warrant, sec. 925 — 260m, Stats., did not authorize the comptroller to refuse to do so, even though he was advised by the city attorney that a doubt existed as to the legality of the relator’s claim.

4. Nor would such a refusal be justified by any desire of the city to plead as a defense in the action that the relator had unlawfully concealed assessable property from the assessors and hence was not entitled to recover the unlawful taxes paid.

Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. Tuehee, Circuit Judge.

*Affirmed.*

This is a *mandamus*action to compel the city comptroller of the city of Milwaukee to countersign a warrant for the refund of an excessive personal property tax.

A demurrer was interposed to the writ and an order was entered by the circuit court overruling the demurrer and refusing to quash the writ. The defendant took an appeal from this order to the supreme court, and upon hearing here *70tbe order was approved. While that appeal was pending in the supreme court the circuit court proceeded in the action and entered an interlocutory judgment commanding the defendant to audit the resolution of the common council allowing plaintiff’s claim for the refund of the excessive tax and to countersign a city warrant for the' amount of such refund. There is no return to the alternative writ other than the affidavit of Clifton Williams, as city attorney, filed in opposition to the court’s order to show cause why the defendant should not forthwith do the things commanded by the alternative writ and in default thereof be proceeded against for contempt. The circuit court by order of January 10, 1916, held this affidavit to be a return to the alternative writ and allowed the petitioner twenty days from such date to plead to such return.

On February 2, 1916, plaintiff served notice on the city attorney that it would move for a peremptory writ on the record on February 12th. On February 26, 1916, the court made an order directing that the peremptory writ issue, and on February 29, 1916, the court further ordered that an interlocutory judgment be entered adjudging that the peremptory writ of *mandamus*issue and reserving for future adjudication the amount of the damages and costs to which petitioner is entitled and against whom the relator shall recover such costs and damages, and that the city of Milwaukee be summoned and served with a copy of the return and such order and that the city have twenty days to answer. An interlocutory judgment was entered on February 29, 1916, awarding the peremptory writ, commanding the defendant to audit the resolution of the common council and to countersign a warrant for the refund of the excessive tax paid by plaintiff, and that the questions of the liability for damages and for costs in the action be reserved for future determination in a final judgment. This appeal is taken from such interlocutory judgment.

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      *Glifton Williams,*city attorney, for tbe appellant.

Eor tbe respondent there was a brief by *Quarles, Spence & Quarles,*attorneys, and *W. 0. Quarles,*of counsel, and oral argument by *W. 0. Quarles.*

Siebecicee, J.

Tbe former appeal in tbis action to tbe supreme court was from an order overruling a demurrer and refusing to quash tbe writ of *mandamus*wbicb commanded defendant as city comptroller to audit a resolution of tbe common council and countersign a warrant for tbe return of an excess personal property tax paid by plaintiff under an alleged mistake. Tbe facts of tbe case involved in tbe appeal are fully stated in tbe report of tbe case and tbe decision of tbis court in 163 Wis. 101, 157 N. W. 559. Tbe record before us discloses no facts on tbe merits of tbe controversy in addition to those before tbe court on tbe former appeal. Tbe inquiry now presented is, Was tbe circuit court justified in proceeding in tbe action in circuit court during tbe time tbe case was pending in tbe supreme court on such former appeal? Tbe order embraced in tbe former appeal denied defendant’s motion to quash tbe writ and bis demurrer thereto, and further ordered “that defendant have twenty days within wbicb to plead over to tbe said relation and alternative writ of *mandamus.”*Tbis is manifestly such an order as is contemplated by sec. 3060, Stats., providing that an appeal from such an order does not delay performance thereof or obedience thereto, except upon compliance with such condition as tbe court directs, tbe execution of an undertaking as required by said section, and that “no appeal from an intermediate order before judgment shall stay proceedings unless tbe court or tbe presiding judge thereof shall, in bis discretion, so specially order.” An appeal from an order overruling a demurrer does not stay proceedings without an order of tbe court. *Noonan v. Orton,*30 Wis. 356; *Douglas Co. v. Walbridge,*36 Wis. 643. Neither tbe circuit court nor *72judge thereof made, as specified in this section, any direction or order to delay performance thereof or obedience thereto or any special order to stay proceedings in the case pending the appeal to this court.

The defendant contends, however, that he is relieved from procuring such action of the court to effect a stay of proceedings by sec. 925 — 269m, Stats, (ch. 452, Laws 1913), providing: “No officer of any city, no matter how organized, shall be required to file an undertaking or any other bond required on appeal in any court when such party has been sued in his official capacity, except in actions of *quo warranto*. . ., nor shall any city officer be liable for any costs or damages, but costs or damages, if any, shall be awarded against the city.” The claim that this statute operates automatically to delay performance of the order and to stay proceedings in the action without being specially ordered by the court or judge during the pendency of the appeal in this court from the original order overruling the demurrer is not borne out by its provisions. The statute at most provides that a city officer, when sued in his official capacity, is relieved from filing an undertaking or bond required of parties to effect an appeal to this court; but there is nothing in the statute indicating that the proceedings shall be stayed without an order of the court specifically directing a stay as required by statute in all other actions, and no such order was made in this case.

It is also contended that the provisions of sec. 925 — 260m, Stats., to the effect that an official of any city authorized to countersign city warrants or resolutions for the expenditure of money may refuse to do so if informed in writing by the city attorney that doubt exists in regard to the legality of such expenditure until such matter is determined by the courts, operate to excuse the comptroller from abiding by the determination of the court during the pendency of the appeal. The record shows that the defendant was informed in writing by the city attorney that a doubt existed in regard *73to tbe legality of plaintiffs claim. Manifestly under this statute tbe comptroller was authorized to refuse to countersign. tbe resolution and warrant until tbe matter bad been determined by tbe courts; but when a court bad so determined, its proceedings were not to be stayed in carrying its adjudication into effect by authority so conferred on tbe city attorney and comptroller, nor can such authority be employed to defy any action of tbe court within its jurisdiction in dealing with tbe matter. Such an interpretation of tbe statute as defendant claims would lead to tbe absurdities of exempting' tbe comptroller from obeying tbe lawful commands of courts in tbe course of a legal proceeding under tbe law. There is nothing in tbe statute indicating that the legislature intended to exempt defendant from tbe provisions of sec. 3060, Stats.

.An examination of tbe record discloses nothing to warrant this court in reversing tbe judgment appealed from. It is suggested in argument that the' city might desire to plead as a defense that plaintiff unlawfully concealed assessable property from tbe city assessors and hence is not entitled to recover tbe unlawful tax it paid which is here in question. If any of relator’s property was discovered which bad been omitted from tbe assessment roll, it was tbe assessing officer’s duty under tbe statute to reassess tbe property within tbe same year, and, if this could not be done, it should have been entered on tbe roll once additional for each of tbe previous years of such omission. It is apparent that tbe city, under the statute,-was fully empowered to reach property omitted from assessment. There is no error in tbe proceeding of tbe circuit court.

*By the Gov/rt.*— Tbe judgment appealed from is affirmed.