#### THE STATE OF WISCONSIN, Plaintiff in Error, *vs*. DOMINICK CASEY, Defendant in Error.

ERROR TO WAUKESHA OIRGÜIT COURT.

The clear proceeds of all fines collected in the several counties for any breach of the penal laws, belong to and constitute part of the school fund.

The school fund, is the property of the state, and an action is propérly brought in the name of the state to recover any amount due from individuals to said fund, in '-■'■the absence-of other-statutory regulation. . , • ¡ ;.

. This suit was commenced in tbe Waukesba Circuit Court, in the name of the state of-Wisconsin, against the defendant in error, by summons in a plea of debt.

.--.The declaration, was .by William S. Hawkins, attorney and agent, against the defendant," that he, render unto the state of Wisconsin, the:sum of five hundred dollars, lawful money, &c., which he owes to, and unjustly .detains from-the school funds, of ■the state of-Wisconsin.

. . For that.wkereas, heretofore, to wit; .from the 15th day of January, A. D. 1851, to the 1st day of January, A. D. 1853., to wit :;g,t Waukesha, in the county of Waukesha,'state aforesaid, the - said Dominick Casey,-defendant, ;was a county officer of the county.-of Waukesha aforesaid, to wit: sheriff of said county duly.elected and qualified to said office, and acting as. sheriff .aforesaid, .for the term aforesaid, and being such sheriff aforesaid, and during the term aforesaid, and as such sheriff, at the town and county aforesaid, he, the said defendant, received divers large sums of money, paid to him as sheriff aforesaid, on account of fines, penalties and forfeitures, to wit: (the declaration goes on to state specifically, the time when, the persons of whom received, for what offences they were convicted, etc., etc., and the amount thereof from each, amounting in all to the said sum of five hundred dollars), the proceeds of such fines, &e., belonging to the school fund of the *319state of Wisconsin. ■ And.by virtue of an. act.,.of the-legislature of said state, approved April 8,. .1854, entitled; An act-supplementary to an act to provide for the more speedy, collection of fines, forfeitures and:penalties remaining.-in the hands of justices of the peace,” approved February 8, 1854, the plaintiff avers that,one William. S- Hawkins,- -who was .duly>and lawfullyap-pointed by the governor--of- said-etate, -an.- agent, for .the district composed of said county of Waukesha, to call for,,demand and receive, and when necessary, to-:sue>for and: collect all-moneys heretofore paid to, or received by any county or town officer, or other.person within the-, said district, on-account .of .-any.fines, penalties or forfeitures, the proceeds of which belong to the school-fund,.or-the state-.treasury^ .and. wliickhave not been paid over by such officer or person as required by law, and all moneys which shall hereafter be paid to, or received by such officer or person, and which shall not be paid over within the time required by law. , And the plaintiff, avers; that the said defendant, .as such officer-.and sheriff.aforesaid, having, failed to. pay over the aforesaid several sums-cf money, or any-part thereof,. as required.by law, the said William S..Hawkins, age.nt as aforesaid, and by virtue and authority- of the statute aforesaid, heretofore, .to.wit: on or about, the 5th day- of-February, A. D.. 1855, and .on ..divers other days before that, time, to wit: in the months of November and .December,. A. D. -1854, to wit: at Waukesha and within the district aforesaid,.and as such agent..aforesaid, did -lawfully- demand of the.said, defendant,-the payment .of.the said several sums of money aforesaid, and did. then and there produce to the said defendant his, the said William. S. Hawkins, appointment under the seal- of..-the said state of Wisconsin, as -evidence .-of his authority to make such demand, and.that the said defendant has failed to pay over the said several sums of money, so received by him as sheriff of said county-of- Waukesha, as required by.law, and has failed to. pay .over .the, same-to the. said Hawkins, lawfully demanding the, .same, or to the state of -Wisconsin, or to any other person legally authorized by law to- re- . ceiye.-. the same.- • ...... ;

*320The second count was a general one, without specifying the particular sums received, the time when, of whom, &c.

To this declaration the defendant filed a demurrer, assigning causes, which are stated fully, and in detail in the opinion of the court.

The Circuit Court sustained the demurrer, and rendered judgment for costs against the plaintiff; to reverse which this writ of error is sued out.

The cause was submitted to the court upon the case made.

*Wm. R.*Smith,, attorney-general, for the plaintiff in error.

*A. W. Randall*and *R. M. Randall,*for the defendant in error.

*By the*Court,

Cole, J.

This suit was instituted by William S. Hawkins, in behalf of the state, to recover of the defendant in error, certain moneys, alleged to have been received by him, as sheriff of Waukesha county, on fines imposed by justices of the peace, upon conviction of persons for criminal offences. The declaration contains two counts; the first of which alleges, that Casey, while he was sheriff of Waukesha county, received divers large sums of money (specifying a number of sums which had been collected, upon fines imposed upon various individuals mentioned, who had been convicted of criminal offences before magistrates), to the amount of $500, the proceeds of which belonged to the school fund of said state; and that by virtue of an act of the legislature, approved April 8,1854, entitled, “An act supplementary to an act to provide for the more speedy collection and payment of fines, forfeitures and penalties, remaining in the hands of justices of the peace,” the plaintiff avers, that William S.' Hawkins was duly and lawfully appointed by the governor of the state, an agent for the district composed of Waukesha county, •to call for, demand and receive, and, when necessary, sue for and collect, all moneys theretofore or thereafter paid to, or received by any county or town officer, or other person in said district, *321on account of any fines, penalties or forfeitures, tbe proceeds of wbicb. belonged to tbe school fund, or tbe state treasury, and wbicb bad not been paid oyer by sucb officer witbin tbe time required by law. And tbe plaintiff further averred, that Oasey having failed to pay over said sums of money, as required by law, said Hawkins, by virtue of tbe statute, at various times demanded said moneys of him, and that be failed to pay them to said Hawkins, or to any other person lawfully authorized to receive them on behalf of tbe state.

Tbe other count of tbe declaration is a general one; that Casey, at Waukesha, once received a certain other sum of $500, for tbe use of tbe plaintiff, to be paid on request, with tbe usual breach.

To this declaration, tbe defendant interposed a demurrer, assigning tbe following as causes of demurrer:

> “ 1. It does not appear in and by said declaration, that tbe said defendant has received any money belonging to tbe state of Wisconsin, nor what part or portion of any moneys in bis bands belongs to tbe state.

> “2. It does not appear in and by said declaration, that any moneys in tbe bands of tbe defendant belong to tbe state treasury, or to tbe school fund of tbe state.

> “ 3. It does not appear therein, that tbe ‘ clear proceeds ’ of any fines, alleged to have been received by tbe defendant, have been determined, or set apart by any tribunal, or any law of this state, to be paid into tbe ‘'school fund.’

> “ 4. It does not appear therein, that tbe state of Wisconsin has, or can have any right of action in tbe name of tbe plaintiff in this suit, for any moneys alleged to have been received by tbe defendant.

> “5. It does not appear .therein, that any demand has been made upon tbe defendant, for any moneys belonging to tbe state or to tbe ‘ school fund.’ ”

> *“*6. It does not appear that tbe said William S. Hawkins, tbe pretended agent of tbe said plaintiff, bad any right to demand of or receive from tbe defendant tbe moneys alleged to be in bis bands, or to commence this suit.

> *322*“ 7.*It does not appear for wbat purpose or object tbe moneys mentioned in tbe second count in said declaration, were received ' by tbe defendant, nor from wbom, or on wbat account tbe said moneys were received by bim, nor in any other manner is it stated by wbat right tbe said plaintiff is entitled thereto, nor by wbat right be, tbe said Hawkins, has instituted this suit for tbe moneys mentioned in said second *count;*and for other infor-malities, &c.”

Tbe Circuit Court sustained tbe demurrer, and this ruling is assigned for error here.

We are unable to concur in tbe opinion of tbe Circuit Court, bolding tbe declaration bad, for any or all tbe objections taken to it. Section 2 of article 10 of tbe constitution, provides wbat shall constitute tbe school fund of this state, and makes “ tbe clear proceeds of all fines collected in tbe several counties for any breach of the penal laws ” a part of this school fund. Now, all that it appears necessary to say upon tbe 1st, 2d, 4th, 5th and 6th causes of demurrer, is to remark that the first count in tbe declaration does distinctly allege that tbe defendant has received certain moneys collected on various fines imposed in Waukesha county for breaches of tbe penal laws of *the ■*state; that these moneys belong to tbe school fund, and that be has refused to pay them over to a person authorized by law to receive them.

That tbe action is properly brought in tbe name of tbe state, we think there can be no doubt. Tbe clear proceeds of tbe money collected from fines belonging to the school fund, are a part and parcel of it; and is argument needed to demonstrate that tbe school fund belongs to tbe state ? We suppose, then, tbe state, to wbom this money rightfully belongs, is tbe proper party to sue for it, in tbe absence of statutory provisions, directing tbe suit to be instituted in tbe name of some officer, or corporation, or citizen. The declaration alleges that Hawkins was duly authorized by law to receive tbe money, and tbe effect of tbe demurrer is, to admit that fact and all others well pleaded.

As to tbe 3d objection, that it does not appear from tbe declaration that the *“*clear proceeds” of any .fines alleged to have been received by tbe defendant, bad been determined or set apart *323by any tribunal, or any law of this state, we do not think such fact needs be set forth, in the declaration. Whether the act of April 3, 1854, or of Pebruary 21, 1851, or any other act in force in the state determines what shall be the “ clear proceeds ” of moneys arising from fines for breaches of the penal laws, may become a matter-of- inquiry upon the trial of the cause. That question does not fairly arise at this stage of the suit.

The judgment of the Circuit Court is reversed and the cause remanded for further proceedings according to law.