#### Town of Spooner, Respondent, vs. Washburn County, Appellant.

*January 11*

January *31, 1905.*

*Taxation: Collection of delinquent taxes: Accounting between county and town: Power of county board: Supervisor as*representa-■ *Uve of town: Amount due the county: Talcing of tax deeds: Compromise of taxes: Invalid taxes: Costs of action: Interest.*

1. A county board, cannot, by a mere resolution instructing tbe treasurer to balance all accounts between tbe county and tbe several towns therein, settle or discharge tbe claim of a town for money collected by the county for delinquent taxes.

2. To give tbe county board jurisdiction of such a matter, a claim in appropriate form must be presented on behalf of a town, and the town must be given an opportunity of prosecuting its demand and of taking an appeal from a decision adverse to it.

3. The supervisor from a town, while acting in his capacity as a member of the county board, cannpt be deemed to represent or *25stand in the place of the town in a capacity adverse to the county. *Outagamie Go. v. Greenville,*77 Wis. 165, distinguished, and language used therein disapproved.

■4. The amount “due the county for unpaid county taxes,” within the meaning of see. 1114, Stats. 1898, is the sum which equals in amount the county tax, with interest allowed thereon by statute, and all the fixed charges and necessary expenses allowed by law, including those incurred by the county for illegal assessments embraced in the delinquent return, and the five per cent, collection fees on all amounts actually collected by the county; and all sums collected on delinquent taxes in excess of said amount belong, with the interest and charges thereon, to the town, city, dr village from which such taxes were returned as delinquent.

'5. Though the purchase of land by the county at a tax sale is not a collection of the tax within the meaning of sec. 1114, Stats.' 189S, yet the taking of a tax deed, vesting the title in the county and giving it full power of disposition, is such collection, and the county is chargeable in such a case with the redemption value of the tax certificate at the time the deed was executed, and for the redemption value of outstanding tax certificates on the land, as well as all subsequent taxes remaining unpaid which were levied while the county owned the land.

•6. Where the county board, without authority 'of law, and not under secs. 1155, 1184, or 1210s1, Stats. 1898, “compromised” or “canceled” unpaid delinquent taxes or ordered that outstanding certificates be transferred at less than their face value, the county is chargeable with the face value of the tax, interest, and charges up to the date of such compromise, cancellation, or transfer.

'7. Wkere a town returned as delinquent certain taxes on railroad lands, and in an action by the railroad company such taxes were declared void, the costs for which judgment was rendered against the county in such action were a necessary expense for which it should be reimbursed out of moneys collected on the delinquent return of the town.

■8. The account between a county and a town in respect to delinquent taxes collected by the county is analogous to an open account between persons, and the county is liable for interest on any amount due the town only after failure, upon due demand, to pay the same.

Appeal from a judgment of the circuit court for Wasb-'¡burn county: A. J. ViNje, Circuit Judge.

*Reversed.*

This is an action by the town of *Spooner*against *Wash-*
      *26
      *burn*county to recover oil account of collections on delinquent taxes returned by tbe town to tbe county. Tbe town filed its claim with tbe clerk of defendant, demanding payment of tbe amount due it from tbe county for collections of delinquent taxes in excess of tbe amount due tbereon to tbe county. Tbe claim was presented to tbe county board of supervisors on March 15, 1900, and was on tbis day wholly disallowed by them. Tbe town duly appealed from such action of the board to tbe circuit court for *Washburn*county.

While tbe action was pending in circuit court it was referred to T. IT. Woolford, an officer of the court, to bear, try, and determine tbe issues. In tbe proceedings taken before-the referee tbe complaint was amended and issue joined tbereon. Tbe answer set up a resolution of tbe county board of December 28, 1898, which was recorded as follows:

“Motion made and carried that tbe county treasurer be and is hereby instructed to balance all accounts as between tbe several towns and tbe county up to and including Dec. 81st, 1898. Recorded vote unanimous.”

Upon tbe evidence adduced before tbe referee, tbe court directed a modification of tbe report and findings of tbe referee. Tbe court found and determined that plaintiff was a duly organized town, and defendant a duly organized county; that tbe county from 1890 to 1898 inclusive, annually, duly levied taxes against tbe town of *Spooner*in tbe sums specified ; and that tbe town duly levied tbe same upon all ’of tbe taxable property of tbe town. Tbe findings specify tbe various sums of money paid to tbe town by tbe county throughout tbe period of these transactions, and tbe sums of money paid by tbe town to tbe county as state and county taxes. Tbe amount of delinquent taxes, exclusive of fees, returned annually by tbe town to tbe county on real estate and personal property, is found in gross amounts, and tbe collections tbereon by tbe county, exclusive of fees or interest; such sums embracing whatever was collected in cash before sale, and the *27amounts realized from certificates sold at tax sales, and from' certificates sold and assigned after tax sale, and from certificates redeemed while held and owned by the county. . The court charged the county with the gross sum of $1,995.46,. tlie amount realized out of the settlements for certificates declared illegal by the court. The amount actually realized on sales of lands which had been tax-deeded to the county is-charged against the county as due the town. It appears that the county board compromised and remitted to various persons amounts due for taxes which had been returned delinquent. Such action was disregarded by the court, and the full amount of the taxes involved in such compromises was charged to the county. No part of the uncollected personal property tax is charged against the county. The amounts of expense incurred and paid by the county for certificates marked “Void” by the county records, and on land tax-deeded to the county, including fees for the collection, and for publication of tax-sale notice, and for notice of expiration of time for redemption and certificate fees, are ascertained and specified. It also appears that the county paid the sum of $104.35-as costs in an action by the Chicago, St. Paul, Minneapolis *&*Omaha Railway Company against the county, wherein tax certificates which had been issued for delinquent taxes were declared void. The court excluded all school-tax items, as-not properly embraced within the transactions arising out of the delinquent tax return.

As a result of the accounting made by the court, it appeared that defendant had money in its possession, collected by it as delinquent taxes in excess of the amount due thereon, in the-sum of $5,802.13, with interest, for which judgment was-awarded the town, together with ■, costs and disbursements. From this judgment, defendant appeals. Pacts material to-this controversy not stated above will be-given in the opinion..

*L. H. Mead,*for the appellant.

*K. K. Kerman,*for the respondent.

*28Siebecker, J.

1. It is insisted by tbe county tbat any and .all claims of tbe town of *Spooner*embraced in tbis action were settled by tbe county board, as evidenced by tbe resolution of December 28, 1898. Tbis resolution declares “tbat tbe county treasurer be and be is hereby instructed to balance all accounts as between tbe several towns and tbe county up 'to and including Dec. 31st, 1898.” Tbe record gives no information as to tbis transaction, other than is disclosed by tbe contest of tbe resolution, and we are not informed upon wbat grounds the county board acted^n performing tbe extraordinary public function by which it assumed to discharge and free the county from all legal demands which were then held by towns against it. It is not shown by tbe evidence tbat the towns, or any one of them, bad presented claims for tbe consideration of the board, nor does it appear wbat claims and demands were in fact embraced and covered by this action of tbe board, nor does it appear tbat tbe board knew or attempted to ascertain tbe state of tbe accounts between it ■and tbe towns. Tbe action and proceeding of tbe board are unsupported by any basis in fact warranting tbis summary liquidation and settlement of all reciprocal demands.' We know of no authority vesting county boards with power to discharge claims of towns for money collected as delinquent tases in tbis *ex parte*manner. Whatever sums tbe county ■collects on such tases, in excess of wbat is due it under tbe ■statutes, shall be returned to tbe town treasurer for tbe use of tbe town. Tbe right of tbe towns to any such money cannot be wiped out by tbe simple declaration of tbe county board tbat all such accounts be balanced on tbe books. To .give the board jurisdiction in tbis matter, it is necessary tbat a claim, in appropriate form, be presented in behalf of tbe town, and tbat tbe town be afforded an opportunity of prosecuting its demand and of taking an appeal in case of an adverse decision by tbe county board.

It is argued that tbe case of *Outagamie Co. v. Greenville*
      *2977 Wis. 165, 45 N. W. 1090, is an authority recognizing the-validity of this proceeding. The subject of controversy in .that case pertained to the allowance of accounts for services- and expense of commissioners appointed to review the county equalization of assessments. Under the law, the county board was authorized to audit and pay these accounts, and, when so allowed and paid by the county, in the absence of fraud or collusion, the action of the county board was binding on-the town liable for such charges. It is clear that the county board was by law made the auditing body as to these claims,, which made its decision binding on the town liable therefor. No such authority is vested in county boards as regards liability to towns for money collected on delinquent taxes. Counsel place stress on the language used in the opinion in that case, to the effect that “the town is represented in the county board by its supervisor, who has, presumably, every reasonable opportunity to protect and defend its rights in the matter of allowing the accounts of the commissioners,”' and that “the town is chargeable with notice of the proceeding, and, had it desired to do so, might have contested the accounts.” Such a rule could not apply under the facts and circumstances of the instant case, since the proceeding wholly fails to show that any specific claim of any town was under-consideration, to which the resolution could apply. But were-the declaration of the court applicable to the situation before-us, we would be compelled to decline to follow itv We cannot perceive upon what principle it can be held that the town supervisor, while acting in his official capacity as a member of the county board, is the representative of his town to protect and defend its rights as to any claims it may have against the county. If the county board had occasion to act on any such demand, the supervisor, if present, acted in his capacity as member of the county board, vested with authority to transact whatever business arises within its powers as the-county authorities; and while so acting he cannot be deemed *30to be acting for, or standing in tbe place of, tbe town, in a •capacity adverse to tbe county. If bis presence at sucb deliberation of tbe board were to. be given this effect, towns would be subjected to an unusual practice whereby tbeir rights might readily be lost, and they be deprived of tbe usual 'means of enforcing tbeir demands against tbe county. *Miller v. Crawford Co.*106 Wis. 210, 82 N. W. 175; *Northern T. Co. v.*Snyder, 113 Wis. 516, 89 N. W. 460. We are constrained to disapprove tbe rule stated in tbe opinion in that case.

2. A number of exceptions are urged upon tbe grounds that tbe court has made charges against tbe county of different items in these transactions without any warrant in tbe law. Tbe charges so complained of may be grouped as money ■collected on (1) taxes on land tax-deéded to it, and on tax certificates it bolds on sucb lands; (2) for tbe face value of certificates on taxes declared delinquent, which tbe county board remitted in part, and for which it authorized settlements in full; (3) for interest and charges on delinquent taxes collected; and (4) for interest and charges on collections made 'in excess of tbe sums due tbe county for unpaid county taxes, to be returned to tbe town treasurer for tbe use of tbe town. The statement of tbe accounts as made and allowed by tbe court upon tbe transactions embraced in this action is not sufficiently detailed and specific to enable us to restate tbe account under tbe rules which we find must control in an adjustment of tbe reciprocal claims of tbe town and tbe county. No attempt will therefore be made to modify and state tbe account, but tbe action will be remanded for a restatement of tbe account under tbe rules herein declared to be applicable. To do this, tbe court may be required to take further evidence in tbe ease.

3. Secs. 1112, 1113, Stats. 1898, provide what taxes shall be returned by town, city, and village treasurers as delinquent and doubly assessed, and direct bow sucb returns are *31to be made to tbe county treasurer. See. 1114 provides tbat when sucb return is made, duly verified by tbe affidavit of tbe -town treasurer, tbe “statement and affidavit shall be filed with tbe county treasurer; and be shall thereupon be credited by tbe county treasurer with tbe amount of taxes so returned as unpaid and doubly assessed, except tbe five per cent, collector’s fees.” It further provides tbat “all taxes so returned as delinquent shall belong to tbe county and be collected with tbe interest and charges thereon for its own use; . . . but if sucb delinquent taxes, exclusive of tbe five per cent, collection fees, exceed tbe sum then due tbe county for unpaid county taxes, sucb excess when collected (with interest and charges thereon) shall be returned to. tbe town, city or village treasurer for tbe use of tbe town, city or village.” It is apparent from tbe terms of this section tbat tbe county is to make collections of sucb delinquent taxes, and, when a sufficient amount, exclusive of tbe five per cent, collection fee, has been collected to equal tbe amount “due tbe county for unpaid county taxes,” its claim thereon is satisfied and discharged. Tbe difficulties tbat have incumbered these transactions between towns and counties have arisen upon the question of what constitutes tbe amount “due tbe county for unpaid county taxes,” within tbe terms of this section. Is it a sum which, when collected, equals tbe amount of tbe tax levied as county tax, with interest allowed thereon, or is it a sum which, when collected, equals tbe county tax, with interest and charges on tbe taxes so collected, or is it a sum which, when collected, equals tbe county tax, with interest allowed thereon, and all tbe charges incurred by tbe county in performing tbe duty of collecting these delinquent taxes ? It is well established tbat tbe county, in performing tbe duties thus imposed, acts as collecting agent for tbe towns. We find no good grounds, within tbe terms and provisions of tbe statute, tbat impose tbe disbursements, incident to tbe collection of these taxes as fixed charges, upon tbe county. Nor does it ap*32pear by necessary implication that the expense thus incurred in performing this governmental duty, primarily resting upon the town, city, or village, should be borne in part by the .taxpayers of other towns, cities, and villages of the county. By reasonable intendment, the legislature must be presumed to have provided a method of collecting taxes under which each of such political divisions of the county should bear the burdens incident to the collection of taxes assessed upon the property within its boundaries. We are therefore led to the conclusion that the amount “due the county for unpaid county taxes” upon such delinquent lists is the sum which equals in amount the county tax, with interest allowed thereon by statute, and all the charges fixed by law, and those necessarily incurred in performing this public duty. In ascertaining the state of the accounts between the county and the respective towns as to the collection upon such delinquent lists, it follows that “whenever, in the course of collecting the whole delinquent tax for any given year, the county reaches a point where it has collected an amount” on the delinquent list equal to the county tax returned unpaid, with interest allowed thereon, and all the disbursements incurred by the county by way of fixed statutory charges and necessary expenses allowed by law, then, and “from that time forward, all collections made from delinquent taxes on such list, together with interest and charges thereon, belong to the towns.” The items of charges so incurred by the county, and for which the county should be reimbursed out of the amount collected, include the fixed statutory charges and expenses allowed by law, necessarily incurred by it for illegal assessments included in the delinquent return. The item of five per cent, collection fees on amounts actually collected by the county, whether for its own use or for that of the towns, belongs to the county, and is expressly excluded by the statute from the accounting between them. *Milwaukee Co. v.*Hackett, 21 Wis. 613.

4. Another question presented pertains to charges against *33tbe county on lands sold for tases and bid in by the county. It was beld in *Iron River v. Bayfield Co.*106 Wis. 581, 82 N. W. 559, that upon such a purchase by the county it is not chargeable while it so holds the certificate's. The legal result of the taking of a tax deed on such certificates by the county was specifically held as not necessarily involved in the decision, and left undetermined. Upon the facts before us, the lower court found that the defendant county had taken tax deeds to a portion of the lands purchased by it at tax sales, and had since sold and conveyed a portion of such tax-deeded lands; and it was held that the taking of such deeds in no way changed the county’s liability for the unpaid delinquent taxes, and that nothing became due thereon until the county sold such lands, when it became liable for taxes to the amount it had realized thereon. We think this holding erroneous. While the purchase of lands at a tax sale is enjoined upon the county by statute in cases where no bids are received to the amount of the tax, with interest and charges, the law does not make it obligatory upon the county to take a tax deed and thus become the owner. The taking of a deed to such lands purchased by the county is left to the option of the county board, to be exercised whenever it deems it for the best interest of the county to accomplish the general purpose of collecting, as part of the public revenue, what is due. It is not necessary in this case to consider what the legal effect would be if the county, within the fifteen-year limitation under sec. 1182, takes no deeds upon certificates it holds, and we therefore do not pass upon the question. There is notfiing in the statute showing that the county, under such deeds, takes a more restricted or qualified title than individuals would take, nor are there any limitations on its power to deal with the lands as it may see fit. Under similar statutes in other states the deed is held to vest all the interest and title in fee, and gives the county full power of disposition. *Conn. Mut. L. Ins. Co. v.*Wood, 115 Mich. 444, *74*N. W. 656; *Dyke v.*
      *34
      *Whyte,*17 Colo. 296, 29 Pac. 128; 2 Cooley, Taxation, 977, 978. The county may therefore dispose of the lands, as sole proprietor, at a price in excess of, or for less than, the redemption value of the tax certificate when the deed was executed. Under such circumstances, it seems within the legislative purpose that the county should he liable to the town as all other purchasers under these circumstances, namely, for ,the redemption value of the certificate when the land was deeded to the county, and for the redemption value of any outstanding tax certificate on such lands, as well as all subsequent taxes remaining unpaid which were levied while the county owned the land.

5. The court found that some of the taxes returned as delinquent were assailed by legal proceedings as invalid, and that the amounts levied were compromised by order of the court. In all such instances we find the court correctly charged the county with the amount actually collected under such compromise. It appears that the county board, upon application of divers persons, under sec. 3155, made refunds on delinquent taxes. This the court properly credited to the county. In other instances the county board “compromised” or “canceled” unpaid delinquent taxes, or ordered that outstanding certificates be transferred at less than their face value. The court held that such action by the county board was without authority of law, and not within secs. 1155, 1184, Stats. 1898, and charged the county with the face value of the tax, interest, and charges up to the date of such compromise, cancellation, or transfer. This ruling was correct, and within the holding in the case of *Crandon v. Forest Co.*91 Wis. 239, 64 N. W. 847. There is nothing in the record indicating that these compromises were made as authorized by sec. 1210g, Stats. 1898, which empowers the county clerk, county treasurer, and district attorney to compromise taxes returned as delinquent if they shall have good cause to believe such taxes illegal and find a portion thereof is equitably due the county.

*356. Exception, is taken to tke holding of the eo-nrt in respect to a number of specified items upon the ground either that they were improperly omitted as credits to the county, or improperly included as charges against the county. The county claims credit for $22.70, the cost of books and stationery furnished the town. The court refused this credit, and this ruling is supported by evidence tending to show payment. The county claimed credit for $908.88 as a payment made to the town, which was refused, evidently upon the ground that the proof failed to sustain the claim. We find the evidence sustains the court’s conclusion. Another claim is that the court improperly reduced the total amount of the levies of county tax for 1890 from $3,059.32 to $2,177.79 — a difference of $871.53. This difference appears to arise from an overpayment of taxes by the town of *Spooner*which was refunded to the town. The court deducted the amount from the delin■quent return; thus omitting it as a charge against the county on such return, which therefore required that no credit should be given on the delinquent list for the refund. Another item was of $10455, being the costs paid by the county in an action brought by the Chicago, St. Paul, Minneapolis & Omaha Railway Company to declare void assessments on lands included in the delinquent return by the plaintiff town. The town made the assessment and levy against these lands, and returned them as valid and delinquent. Under such circumstances, it was the duty of the county to seek, to enforce collection, and defend the action wherein the railroad company sought to be relieved from the tax. Any judgment of costs ordered against the county in such action is- a necessary expense to be paid by it, and for which it should be reimbursed out of the money collected on the delinquent return of the town.

All other errors argued and not separately noted are deemed to be covered and ruled by what has been stated and considered. Upon the question of the county’s liability for interest on any excess collected over what is due it on such *36delinquent taxes, tie liability attaching to demands or mutual accounts seems applicable. These transactions between counties and towns are analogous .to an open account between persons. The county is therefore not liable for interest from the date of each collection made for the town, but, -whenever the town demands payment of any sum due it which lias actually been collected by the county, and such sum is not paid, then liability for interest on the sum due must follow.

*By the Court.*— The judgment is reversed, and the cause remanded with directions for further proceedings as indicated in this opinion and according to law.