The town of Remington, plaintiff, commenced this action on March 11, 1940, against Wood county and State Conservation Commission of Wisconsin, defendants, seeking a declaratory judgment.
The complaint in this case alleges that Wood county is the owner of general tax certificates as provided by sec. 74.44, Stats., and also drainage-assessment certificates as provided by sec. 89.37 (4) (c) for all parcels of land sold pursuant to the provisions of ch. 89; that tax deeds have been issued thereon to Wood county as provided by sec. 75.36; that all parcels of land which were subject to delinquent drainage assessments for which the defendant Wood county held drainage and general tax sales certificates and which were not redeemed within the period prescribed by statute, were sold at sales held October 8, 1930, January 23, 1935, and July 24, 1939, pursuant to orders of the circuit court for Wood county under authority of sec. 89.37 (4) (d).
That upon said sales, the treasurer of Wood county bid in in the name of said county, approximately twenty thousand nine hundred twenty acres of land subject to general taxes and drainage assessments for an amount not exceeding the face of the general tax certificates held by the county, and deeds were thereafter issued to said county therefor.
That the total general taxes returned as delinquent against the lands sold at the regular tax sales for the years mentioned, *Page 174 as well as the lands sold pursuant to the order of the court under sec. 89.37 (4) (d), were substantially in excess of the total delinquent county taxes assessed against said lands, and said town of Remington had a delinquent real-estate tax credit upon the treasurer's delinquent tax account with said town for a substantial amount.
That Wood county makes claim under the deeds issued on the tax sales aforesaid to be the absolute owner of the title to said lands and to be in no manner accountable therefor to the said town or under any duty to sell the same for payment said town's excess delinquent real-estate tax credit.
That on April 13, 1939, M.R. Laird and J.A. Schindler, acting as vice-chairman of, the county board of supervisors and county clerk, respectively, entered into an agreement with the state of Wisconsin, acting through the State Conservation Commission, whereby the county leased to the state of Wisconsin for a period of twenty years certain of the lands conveyed to Wood county, a copy of the lease being attached to the complaint.
It is then alleged that Wood county under the applicable statutes is not the absolute owner of the title of the lands conveyed to it under any of the deeds referred to but holds the same subject to its preferred claim for unpaid county taxes as trustee with the duty to sell the same and to account to the town of Remington for any excess of delinquent taxes realized from a sale thereof.
Plaintiff's prayer is, (1) That this court take jurisdiction; (2) that judgment be rendered herein, (a) determining that the interest of Wood county in any of the lands conveyed to it during the years alleged in the complaint for which it held general tax sales certificates is limited as to each tract to the amount of the delinquent county tax with statutory charges and interest.
(b) That the title to said lands is held by the county as trustee for the plaintiff town of Remington, with the duty *Page 175 to hold said lands available for sale and to sell the same for the purpose of realizing the delinquent taxes assessed against the same.
(c) To account to the town of Remington upon the sale thereof for any amounts realized thereon in excess of the delinquent county taxes.
(d) Declaring the lease and agreement between Wood county and the state of Wisconsin unauthorized and invalid, and
(e) If the relief prayed for is not granted, that it find and determine Wood county to be accountable in cash.
The defendants answered, admitting the formal allegations of the complaint; that the tax sales were had and tax deeds were issued as alleged in the complaint; admitted that Wood county makes claim under the deeds issued to it upon the tax sales, to be the absolute owner of the title to said lands and to be in no manner accountable to the town of Remington to sell said lands and to be accountable to the town of Remington only for so much of the proceeds of said lands, if and when sold, as exceed the amount due the county on unpaid county taxes upon said lands, with interest and other lawful charges thereon.
It is further alleged in the answer that the county offered to convey certain lands not involved in this litigation to the town of Remington but the town did not accept said offer. The defendants pray that judgment may be rendered declaring and determining:
"(a) That Wood county is the owner in fee of the lands set forth in Exhibit A of plaintiff's complaint.
"(b) That Wood county is not under any duty to hold said lands available for sale and to sell the same and does not hold said lands in the capacity of a trustee for the town of Remington.
"(c) That the lease and agreement between Wood county and the state of Wisconsin is valid.
"(d) That the town of Remington has no interest in and to said lands. *Page 176
"(e) That the town of Remington is entitled only to so much of the proceeds of the sale of said land if and when sold as exceeds the amount due the county on unpaid county taxes upon said lands with interest and penalties thereon.
"(f) Such further and other relief as may be proper."
In the view that we take of the case it is not deemed necessary to set out the contract between Wood county and the Conservation Commission. It may be said that the agreement sets out that the county has set aside a large tract of land as public fishing and shooting grounds and the contract relates in the main to the administration of the property as public fishing and shooting grounds.
The plaintiff demurred to the answer on the ground that the facts set out do not constitute a defense. From the order sustaining plaintiff's demurrer, entered on December 24, 1940, the defendants appeal. It is apparent from a consideration of the pleadings that what the plaintiff seeks in this case is a general advisory opinion upon certain parts of the laws of this state relating to the taxation and sale of lands. While it appears that certain lands are claimed to be owned by Wood county in fee simple, it does not appear from the allegations of the complaint that anyone has an interest in said lands, that is, no basis of fact upon which such interest arises is stated in the complaint. We think with one exception no justiciable issue is presented by the pleadings in this case. *Page 177 Most of the allegations, except those relating to the levy of the tax, its collection, and sale of the lands, are allegations about the law. We think, however, there is one question which may be fairly considered under the Declaratory Judgments Act, sec. 269.56, Stats., and that is the construction of ch. 405, Laws of 1929.
Prior to the adoption of that act, sec. 75.36 read:
"When any lands upon which the county holds a tax certificate shall not be redeemed as provided by law the county clerk shall execute to the county, in his name of office, a deed therefor, witnessed, sealed and acknowledged and in like form as deeds to individuals; and such deeds shall have the same force and effect as deeds executed by such clerk to individuals for lands sold for the nonpayment of taxes; but no such deed shall be issued until the county board shall, by resolution, order the same."
Ch. 405, Laws of 1929 (amending sec. 75.36), provides:
"The county taking such deed shall not be required to pay any delinquent or outstanding taxes on such land, the redemption value of any outstanding tax certificates, or interest or charges until the land is sold by the county, or in the case oflands registered as forest crop lands until the forest crop istaken off. It the sum realized on such sale or from the severance of such forest crop is insufficient to pay all of the said taxes, delinquent taxes, certificates, or interest or charges, the amount realized shall be applied thereto and there shall be no further liability upon the county for the same."
The enactment of this statute modified the rule laid down in Spooner v. Washburn County (1905), 124 Wis. 24,102 N.W. 325. In that case it was held that though the purchase of land at a tax sale is not a collection of the tax within the meaning of sec. 1114, Stats. 1898 (now sec. 74.19), 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 under such circumstances with the redemption value of the tax certificate at the time the deed *Page 178 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, and that the county was liable to account therefor.
In Bell v. Bayfield County (1931), 206 Wis. 297, 301,239 N.W. 503, considering ch. 405, Laws of 1929, the court said:
"It was the plain purpose of the enactment to relieve the counties from their statutory obligation to pay the towns the amounts due under the rule of that case until they should receive from the sale of the land money with which to pay."
The question of whether the county was under an obligation to sell was not presented by the record in that case. In this case the trial court was of the view that because under the law the county is the only bidder and the town is excluded from bidding, if the county is not obligated to sell the lands, it has acquired in such proceeding, it would operate to exclude the town from a valuable property right, which cannot be done. However, in Bell v. Bayfield County, supra, it was held that towns are agencies of the state and have no right to tax moneys which the legislature may not validly take away. We are unable to discover that the town of Remington has any vested right in the tax-collection process. It acts as an agency of the state in the levy, collection, and return of taxes. The town is therefore not excluded from a valuable property right, and hence no duty arises from that circumstance which requires the county to make sale of the land within any specified time.
The contention of the plaintiff that the relation of the county of Wood to the town of Remington is that of a trustee charged with the duty of either selling the certificates of sale or the lands of which it has taken title, cannot be sustained. Sec. 75.36, Stats., already set out, provides that the effect of a tax deed running to the county shall be the same as if executed by the county clerk to individuals. *Page 179
Sec. 75.14 (1), Stats., provides: A general tax deed —
"shall vest in the grantee an absolute estate in fee simple in such land subject, however, to all unpaid taxes and charges which are a lien thereon."
It is therefore clear that the county gets an absolute estate in fee simple in the lands deeded to it. If the county is a trustee for the benefit of the plaintiff it is because it is under some duty to account to plaintiff. The statute provides that the duty to account arises when the lands are sold. It does not charge the county with a duty to sell. That is left to the discretion of the county. Its discretion is a legislative, not a legal discretion which can be controlled by the court. To hold that the statute requires the county to sell under any particular circumstance is to amend the statute, — to exercise legislative power which a court may not do.
It is argued by the plaintiff that as applied to tax deeds taken by the county, sec. 75.14 (1), Stats., merely vests in the county the right to convey an indefeasible title in fee simple to third persons. We do not so construe the statute. We think it is clear that the county takes an absolute title in fee simple, charged to account as provided in the statute when a sale is made.
However persuasive the argument made by plaintiff may be to the effect that good public policy requires that the county be obliged to make sale of the lands and account to the town, that argument presents a question for the legislature and not for the courts. Our whole tax-collection system was framed upon the theory that the lands taxed would always be worth many times the amount of the taxes levied against them. To insure that result limitations were placed upon municipal corporations with respect to taxes which they might levy. There have been cases before this court where it was argued that the value of the lands taxed did not equal the amount of the school tax, let alone the county and state taxes. The state has been slow to adjust itself to these changes. The factual situation *Page 180 is a matter wholly within the province of the legislature. The legislature has provided that the county shall not be liable until a sale is made but has not required a sale to be made within any specified time. The reason that no time has been specified is very well stated in Bell v. Bayfield County, supra. If the county board in the exercise of the discretion vested in it by the legislature abuses its discretion, that presents a matter not for the court but for the legislature which so far has placed no limitations upon the exercise by the county of the power conferred upon it.
In order to be as helpful as the record permits, the court has construed the statute in the light of the allegations contained in the pleadings in this case. Other questions raised are not before us in this proceeding. Inasmuch as the demurrer to the answer searches the record, it is considered that the complaint states no cause of action except for the construction of the statute. The order will therefore be for a reversal of the order sustaining the demurrer to the answer with directions to enter judgment in accordance with this opinion.
Both parties by their pleadings seek a construction of the statute. If judgment is entered in the court below, it will of course be without costs, no costs to be taxed by either party upon this appeal except that the plaintiff, town of Remington, shall pay the clerk's fees.
By the Court. — The order appealed from is reversed, and cause remanded for further proceedings. *Page 181