such lands theretofore patented, or which might thereafter be patented, under the law of 1874, should be exempted from taxation of all kinds for 10 years. Held, that the period of exemption did not begin to run as to each batch of land thereafter patented from the date of the patent, and continue 10 years therefrom, but began to run at once as to all the land granted, and ceased entirely, as to all, at the end of 10 years. 2. Laws Wis. 1879, c. 22, exempted certain lands granted to a railway company from taxation for 10 years, and in section 6 provided that during the exemption the company should at all times, and as fixed by statute for similar reports from other railway companies, make a report of its gross earnings for the preceding year, and should each year pay into the state treasury, at the times fixed by the Revised Statutes for payment by railway companies of their license fees, a sum equal to 5 per cent. of its gross earnings for the preceding year, which should be in lieu of all other license fees exacted from the company. Held, that the section merely prescribed a way for ascertaining the amount of the license fee for the year in which it should be paid, and did not impose a tax on the gross earnings of the road for the preceding year. 3. The state treasurer cannot pay out money received by him as treasurer "except in pursuance of an appropriation by law," under Const. Wis. § 2, art. 8. owned by, its predecessors; that said North Wisconsin Railway Company duly accepted all the terms and conditions contained in both the acts mentioned, and began within the proper time the construction of said railroad, and its successor continued such construction, as provided by said acts, until December 3, 1883, when the same was fully completed and duly accepted by the state; that from time to time during the progress of and subsequent to the completion of said railway, upon due proof of the compliance of said North Wisconsin Railway Company and its successor with the terms of said laws, the governor of the state caused to be issued to said last-named company and its said successor proper patents to said lands; that a large amount thereof was so patented in each of the years 1874 and 1875, and each of the years 1880 to 1885, inclusive; that said North Wisconsin Railway Company and its said successor have in all things fully performed and fulfilled, or are ready and willing to do so, all the provisions of said laws, and each of them, on their part; that the North Wisconsin Railway Company and its said successor have from year to year, since the passage of said chapter 22, made a report of its gross earnings for the preceding year, paid to the state treasurer the 5 per centum thereof, and prepared and filed with the state treasurer and the several county treasurers the list of exempt lands, at the times and in the manner prescribed by sections 6 and 7 of said act; that during 1889 the said Omaha Company, as such successor, has paid to the state treasurer the sum of $47,207.09 as a 5 per centum of the gross earnings of its Northern Division, for the respective months of the year 1888, aggregating $944,141.77, as required by said chapter 22, and no other act, and the same was known to said treasurer at the time, and that he receipted for one-half the amount thereof February 9, 1889, and the other half thereof August 5, 1889; that, on the gross earnings of the other divisions of said Omaha Company's road for 1888, it paid at the same time, to said state treasurer, a 4 per centum license fee, as provided in sections 1211-1213, Rev. St.; that said Omaha Company, as such suc This is an application on behalf of the counties of Bayfield and Burnett for a writ of mandamus to compel the apportionment and payment of $47,207.09, now in the hands of the state treasurer, pursuant to chapter 22, Laws 1879. The relation alleges, in effect, the acts of congress of June 3, 1856, and May 5, 1864, granting to this state a large quantity of public lands to aid in the construction of a railroad from the St. Croix river or lake to the west end of Lake Superior and Bayfield, upon conditions specified in said acts; that by chapter 126, Laws 1874, the legislature of this state, for the purpose of aiding in the construction of said road, granted to the North Wisconsin Railway Company all the right, title, and interest which said state then had, or which it might thereafter acquire, in and to all of said lands applicable to said line of road, upon the performance of the conditions therein prescribed. The relation then sets out in full said chapter 22 of the Laws of 1879, which went into effect February 21, 1879, and further alleges, in effect, that May 25, 1880, articles of consolidation by and between said North Wisconsin Railway Com-cessor, was, August 1, 1889, the owner, unpany and the Chicago, St. Paul & Minneapolis Railway Company, a corporation then duly organized and existing under the laws of Wisconsin, were executed and recorded as required by law, by which articles there was created and incorporated pursuant to the laws of this state, and has ever since continued to exist, a new corporation, under the name of the "Chicago, St. Paul, Minneapolis & Omaha Railway Company," and which, for convenience, will be hereafter called the "Omaha Company;" that by said articles of consolidation and incorporation the Omaha Company thereupon became, and ever since has been and now is, the successor, owner, and entitled to the possession, of all the property, franchises, rights, powers, privileges, and immunities, including all exemptions from fees and taxes, which had been provided by law, acquired by, granted to, or was at the time of said consolidation der patents from the state issued since 1880, of 163,186 acres of land, the larger portion of which was situated in said counties of Bayfield and Burnett. The relation also shows the number of acres exempt under said chapter 22, each year since its passage, the names of the counties within which they are situated, and the amount apportioned to each of said counties for each of said years pursuant to that chapter. It is also therein alleged, in effect, that by the terms of said chapter 22 it became and was the duty of said state treasurer, upon the receipt of said list or statement of exempt lands for 1889, to apportion the said $47,207.09 among said several counties upon the basis of the total acreage of land so exempt, and thereupon transmit, before September 15, 1889, to the county treasurer of each county in which such exempt lands are situated, the amount to which such county was, upon said basis, entitled; that, disregarding his said duty, in viola- | tion of said chapter 22, said state treasurer, upon receiving said list, refused and neglected, and still refuses and neglects, to either apportion or pay over to any or either of said counties the amount mentioned, or any part thereof; that the several counties named in which such exempt lands are or were situated have fully observed the provisions of said law; that subsequent to September 15, 1889, and prior to the regular annual meeting, in November, of the several county boards of said counties, due demand was made on said state treasurer that he apportion and pay over said sum to said several counties in the manner provided in said chapter 22, but that he refused, and still does refuse, to so apportion or pay over said sum, or any part thereof; that among the rea sons given by said state treasurer for such refusal is that said chapter 22 expired by its own limitation February 21, 1889, and that said counties have no right or interest in the sum named, or any part thereof. cessor, have for each year subsequent to 1879, up to and including 1888, duly filed said list of exempt lands, and paid to the treasurer of the state the sum of 5 per cen. tum upon the gross earnings of the North Wisconsin Railway Company, now known as the “Northern Division," and that the amount received during said years, respectively, from said company or companies, has been duly apportioned between the counties in which said lands were located, as shown by said Exhibit D; that the Omaha Company duly filed the list of lands before August 15, 1889, showing the location of lands still held by it, being the number of acres and in the counties as shown by said Exhibit D, but that said treasurer has refused to apportion the amount of license fee paid by said company upon said Northern Division among the counties in which said lands are located, for the reason, as he is advised and verily believes, that the time for which said lands were exempt from taxation as provided by said chapter 22 had expired before the filing of said list or the payment of said license fee, and, having so expired, that none of the counties named in the petition or shown upon said Exhibit D were entitled to receive said money, or any portion thereof. To such return so made by said state treasur it does not state a defense to said relation. The respondent Timme moves the court to quash such alternative writ, as to him, on the ground, in effect, that the petition does not set forth facts sufficient to impose upon him the duty of issuing warrants for said money upon the state treasury. Richmond & Smith, for relator. C. E. Estabrook, Atty. Gen., and L. K. Luse, Asst. Atty. Gen., for respondent. To such relation the said Harshaw made return as required by law, which return consisted largely of admissions, and among other things admitted, in effect, that said North Wisconsin Railway Company and its successor has since the pas-er the relator demurs on the ground that sage of said chapter 22 made report of its gross earnings for the preceding year, and paid to such treasurer 5 per centum of said earnings upon its Northern Division, now owned and occupied by the Omaha Company, and that said 5 per centum of its gross earnings for the year 1889 amounted to the sum stated, and that said sum was received by him from said company; but he expressly therein denies, in effect, that said amount was paid by said Omaha Company or received by said state treasurer as and for said 5 per centum provided by said chapter 22, and alleges, in effect, that said moneys were paid at the same time with the other license fees referred to in the relation, and received from said company, and, in a gross sum, was transmitted to said treasurer, he receiving the same, and the whole thereof, as a license fee for the operation of all the lines of said Omaha Company in Wisconsin; that in the year 1879, and after the passage of sald chapter 22. and on or before August 15, 1889, the said North Wisconsin Railway Company duly prepared and filed in the office of the state treasurer a list of all lands for which they had received patents which were exempt under the provisions of said chapter 22, showing the location of such lands as were located in the counties of Barrow, Burnett, Polk, and St. Croix, and that said company paid to the state treasurer during the year 1879, and on or before August 10, 1879, a sum of money equal to 5 per centum of the gross earnings received by said company, as shown by its record then on file in the office of said treasurer, and that the said moneys received were apportioned between the above-named counties, and duly transmitted and paid to them, the amounts paid each of said counties appearing upon Exhibit D, attached to said relation; that said North Wisconsin Railway Company and the said Omaha Company, as its suc CASSODAY, J., (after stating the facts as above.) The grant to the North Wisconsin Railway Company, by chapter 126, Laws 1874, was upon the express condition that the said company should immediately proceed with the construction of said road, and should construct so much thereof the first year as should, with that already constructed, make 40 miles, and not less than 20 miles each year thereafter, and that the whole should be completed within seven years after the passage of said act; and the act required the company, upon acceptance, to give a bond, as prescribed, for the performance of such condition, with a forfeiture in case of failure; and the governor was therein required, as often as "satisfactory proof that twenty continuous miles" of said road should be completed, as required, to issue and deliver, or cause to be issued and delivered, to said company, patents in due form, from the state, for 200 sections of said lands. That act contained no exemption of the lands to be so patented, from taxation. Had that act been complied with, the whole of that line of the road would have been completed in 1881, and the company then would have been entitled to all its patents. Of course, as fast as any portion of said railway was completed and went into operation, it was required, as the law then stood, to pay the license fee prescribed by the General Statutes then in force. Sections 1:11, 1213, Rev. St. Section. 2, c. 113, Laws 1875, provided that "all those railroad companies whose lines of road are now incomplete or are in process of construction, and to aid in the building of which the general government has donated grants of land, and which are not exempted from taxation on said lands for the next five years, are hereby exempted from the payment of the license fees required by law for said five years." That section applied to the North Wisconsin Railway, then incomplete and in process of construction, and exempted that company from the payment of such license fees for the said period of five years; that is to say, to January 1, 1880. Section 1212, Rev. St., (chapter 261, Laws 1878,) provided, in effect, that the lands applicable to the construction of said road, by said company, through the counties of Ashland and Bayfield, and which might be acquired by the construction of the same, "shall be and remain exempt from all assessments and all taxation of every kind for the period of five years from the time such company acquires title to the same," except that whenever any of said lands should be sold, contracted to be sold, or leased, the same should immediately become subject to taxation; but that exemption was subject to the condition that not less than 20 miles of said road, commencing at some point between Ashland and and Bayfield, should be completed before April 2, 1880, and provided that the act should only apply to said lands in those two counties. Section 1, c. 22, Laws 1879, provided, in effect, that all lands theretofore patented by the state to the said North Wisconsin Railway Company not theretofore sold, or contracted to be sold, by said company, and all lands which might thereafter be patented by the state to the said company, under chapter 126, Laws 1874, "are hereby exempted, and shall remain exempt, from taxation of all kinds, general and local, and from assessments of every nature, for the period of ten years. "Section 4 of the act provided, in effect, that whenever any of the lands so exempted should be sold, contracted to be sold, leased, or conveyed, or the pine thereon sold or cut, the same should immediately become taxable. SecSection 5 of the act declared, in effect, that the main object and purpose of the act was to aid in securing the completion and equipment of said railway, and to enable the company to apply the avails of its lands to such construction and equipment; the exemption therein provided being, in the opinion of the legislature, necessary for said purposes, and demanded by the public interest. Section 6 of the act provided, in effect, that the said North Wisconsin Railway Company should, “at the times and in the manner fixed by the Revised Statutes for similar reports from other railroads of the state, make a report of its gross earnings for the preceding year, and shall each year, during the continuance of the exemption provided by section one, pay into the state treasury, at the times fixed by the Revised Statutes for the payment by railway companies of their license fees, a sum equal to five per centum of its gross earnings for the preceding year, which will be in lieu of all oth er license fees exacted from said company. Section 7 of the act provided, in effect, that the company should, on or before August 15th in each year, cause a sworn list of the lands owned by it August 1st in such year in each of said several counties, and exempt from taxation, to be prepared, and to file a copy thereof in the office of the state treasurer, and also send a copy thereof to the treasurers of said counties, respectively. Section 8 of the act provided, in effect, that the state treasurer, on the receipt of said list, should apportion the amount of money so received from the company among said several counties as they might be entitled to the same under that act, and thereupon pay over the same to said counties, respectively. The 5 per centum thus to be apportioned among, and paid to, the respective counties named, was a sum equal to 5 per centum of the gross earnings of the company for the preceding year, as required by section 6 of the act. By that section, such 5 per centum was only to be paid into the state treasury at the times fixed by sections 12111213, Rev. St., for the payment by railway companies of their license fees for "each year during the continuance of the exemption provided by section one" of that act. The material question for consideration, therefore, is, when did the exemption prescribed by section 1 of the act commence, and how long did it, or was it to, continue? * * The learned counsel for the relator contends that the words, "are hereby exempted, and shall remain exempt, from taxation of all kinds, * for the period of ten years," should be construed as not commencing, as to any batch of lands subsequently patented by the state to the company, until they were in fact so patented, and then, as to that batch, continue for the period of 10 years from the date of such patents, unless in the mean time the company should part with the title, or sell or cut the pine thereon, and that the same rule would apply to each and every batch so subsequently patented. A moment's reflection as to the facts and circumstances existing at the time of the passage of the act, and the law applicable, will reveal the endless confusion that such a construction would necessarily create. As indicated in the foregoing statement, at the time that section went into effect a large portion of said lands had been patented to the company by the state; and many of them had been expressly exempted from taxation, and were still exempt. Only a portion of the line of road, however, had been constructed. As often as 20 miles of the road was subsequently constructed, the company was entitled to a new batch of patents therefor. The whole was not completed until December 3, 1883. Of course, such land-grant lands, even in the place limits, only became taxable as fast as they were earned by such construction, and certified to by the state authorities. But none of such lands as were situated in the indemnity limits, even though so earned and so certified to, became taxable until actually selected, and such selections actually approved by the secretary of the interior. Railway Co. v. Price Co., 133 U. 8., 10 Sup. Ct. Rep. 341, in part reversIng 64 Wis. 579, 26 N. W. Rep. 93. As there held, no constructive approval would render them taxable. Quite likely, some of those lands have not yet been so approved; and as to them, on the theory of counsel, the 10 years would not begin until such approval. That theory would obviously lead to almost endless confusion, and should not be adopted unless imperatively demanded by the language of the section. The words “exempted," and "remain exempt, .. for the period of ten years, pretty clearly indicate that the legislature only contemplated one 10-years period of exemption, and that that should include all such lands whether previously patented and then exempt, or exempt by reason of not yet having been earned and certified, or such as should be subsequently patented. This construction is strengthened by the well-settled rule in such cases repeatedly sanctioned by the supreme court of the United States, and very recently in these words: "Exemptions from taxation are regarded as in derogation of the sovereign authority and of common right, and, therefore, not to be extended beyond the exact and express requirements of the language used, construed strictissimi juris." Railroad Co. v. Thomas, 132 U. S. 185, 10 Sup. Ct. Rep. 68; Railroad Co. v. Dennis, 116 U. S. 66, 6 Sup. Ct. Rep. 625, and cases there cited. We must hold that the period of 10 years of such exemption commenced February 21, 1879, and completely terminated as to any and all lands to which it was or could become applicable, February 21, 1889. But it is contended by counsel for the relator that, even if such be the true construction of the section, yet that the 5 per centum so received by the state treasurer In 1889 was, in effect, a tax upon the gross earnings of that line of road for the year 1888, and hence that the counties in question were, respectively, entitled to their share of the same. The sixth section, however, provides, in effect, that such license fees to be so paid by said company for any current year should be "a sum equal to five per centum of its gross earnings for the preceding year," payable at the times fixed in the Revised Statutes. Sections 1211-1213. In other words, that section and these Revised Statutes merely prescribed that as the way for measuring and ascertaining the amount of such license fee for the year in which it was paid, and not as a tax on such gross earnings for such preceding year. State v. MeFetridge, 56 Wis. 256, 14 N. W. Rep. 185. Under this construction, the counties in question, respectively, received their proportionate share of such license fees collected under said chapter 22 in the year 1879, and each of the following years, down to and including 1888, making 10 consecutive years in all, or, in other words, the full period of such exemption. This fully appears from the relation, as well as the return. But counsel for the relator further contend that, even if such constructions are correct, and the counties in question have no legal right to the license fees so collected for the year 1889, yet that, as the com | pany voluntarily paid them as such 5 per centum under said chapter 22, and the state treasurer received them as such, he thereby became a mere trustee for said counties, and hence is estopped from denying such trust, or refusing to execute the same by apportioning and paying over the money. There are several difficulties in the way of such contention. In the first place, it must be admitted that he received the moneys as state treasurer, and not as a mere individual. His duties as such state treasurer were prescribed by law. Since the law, as we have found, did not require him to apportion and pay that money over to the counties in question, it is very obvious that he, as such treasurer, owed no duty to them to do so. Besides, it appears from his return that he received said money, with all other license fees due from the Omaha Company, in gross, and receipted for the whole, and did not receive them specifically, as 5 per centum paid under said chapter 22; and he very properly claims that he is entitled to four-fifths of said $47,207.09 as the amount due the state from the company for the year 1889, under sections 1211-1213, Rev. St., and that,if he is not entitled to hold the other fifth, it is a matter entirely between the state treasurer and the Omaha Company, as to which one of the counties in question, as counties, have any concern. We are constrained to believe that such are the legal rights of the parties. But there is still another reason which seems to be a perfect bar to the claim of the relator, regardless of whether one-fifth of the amount named is rightfully or wrongfully in the hands of the state treasurer. It is enough to know that the whole amount is now in the state treasury, and that the constitution provides that "no money shall be paid out of the treasury except in pursuance of an appropriation by law." Section 2, art. 8, and amendment to the same. Since there is no law authorizing such apportionment among and payment to the counties in question, the state treasurer has no lawful right to make the same. The demurrer to the return is overruled, and the alternative writ of mandamus is quashed. (76 Wis. 428) PRANKE V. HERMAN. (Supreme Court of Wisconsin. April 8, 1890.) REPLEVIN-AGENT-JUDGMENT. One who takes property from another, and shows no right of possession either in himself or the person for whom he claims to act as agent, takes and detains unlawfully; and if, on replevin, the property cannot be found, judgment should be given against him for its value. Appeal from circuit court, Waupaca county. Benjamin M. Goldberg, for appellant. F. M. Guernsey, (G. T. Thorn, of counsel,) for respondent. TAYLOR, J. This is an action of replevin to recover a cow and a harness alleged to have been wrongfully taken from the possession of the plaintiff, and unlawfully detained by the defendant, Herman. The action was commenced in justice court. The officer serving the writ returned that he could not find the property described therein. On the trial in the justice court the plaintiff recovered a judgment for the value of the cow and harness. The defendant appealed to the circuit court, and upon a retrial of the case in that court the plaintiff again recovered, and the defendant appeals to this court. tionate share of the lands, without first showing that no adequate remedy could be had against the receiver. 2. A mortgagee who seeks relief against the purchaser of property sold on foreclosure by a receiver, upon the ground of collusion with the receiver, should proceed in the action wherein the receiver was appointed. Appeal from circuit court, Iowa county; GEORGE CLEMENTSON, Judge. Plaintiff appeals from an order striking out his demurrer to the complaint on the ground of frivolity. Reese & Carter and Olin & Butler, for appellant. Chas. D. Smith, for respondent. TAYLOR, J. The facts, which may be said to be stated in the complaint in this action, are the following: That the plaintiff is the widow and administratrix of the On the trial in the circuit court the defendant admitted that the plaintiff was the owner of the cow and harness, and rested his defense solely on the ground that he had not taken or detained the property. Upon reading the testimony taken on the trial in the circuit court, it was clearly a question of fact, and not of law, whether the defendant had unlawfully taken and detained the property of the plaintiff. There was no dispute upon the question of the right of the defend-estate of James M. Lockwood, deceased, ant to take or detain the property. It was admitted that he had no such right, but he denies that there is any evidence that he in fact took or detained the same. The counsel for the appellant seem to argue that because, in taking and detaining the property in question, he acted as the agent of one Mrs. Goldberg, therefore he cannot be held liable for such taking and detention in this action. In the absence of any evidence showing that Mrs. Goldberg had any lawful right to take the property of the plaintiff, there can be no justification for the defendant's taking the same as her agent. The proof shows that the defendant did the actual taking, and, having failed to show any right, either in himself or in the person for whom he was acting as agent, to take or detain the property, such taking and detention was clearly unlawful, and the taking was a sufficient interference with the plaintiff's property to entitle him to bring an action of replevin in the cepit for the recovery of the property, or the value thereof in case the property cannot be found by the officer serving the writ. Dudley v. Ross, 27 Wis. 679; Grace v. Mitchell, 31 Wis. 533, 537; Gallagher v. Bishop, 15 Wis. 276; Williams v. Morgan, 50 Wis. 548-550, 7 N. W. Rep. 541; Timp v. Dockham, 32 Wis. 151; Johnson v. Garlick, 25 Wis. 705. The effect of all these decisions is that an action of replevin in the cepit will lie against one who has unlawfully taken into his possession the property of another, although the possession of such property at the time of the commencement of the action may not be in the defendant. think there was sufficient proof in this action to justify the court and jury in finding that the defendant unlawfully took possession of the property of the plaintiff, as alleged in the complaint. The judgment of the circuit court is affirmed. (76 Wis. 404) We LOCKWOOD V. REESE. (Supreme Court of Wisconsin. April 8, 1890.) MORTGAGE-FORECLOSURE-RECEIVER. 1. Where lands sold in foreclosure by a receiver appointed for that purpose, at the instance of two mortgagees, were bid in by the receiver's attorney, who failed to pay the purchase money, one claiming in the right of one of said mortgagees cannot maintain an action to have the purchaser declared a trustee for him, as to a propor who died intestate, and without having disposed of his interest in the mortgage mentioned in the complaint; that said Lockwood, in his life-time, and at the time of his decease, was the part owner of a mortgage executed by one Emily R. Hooe to said Lockwood, and that one Warren E. Gates was also a part owner of said mortgage. It may also be fairly inferred from the complaint that in the life-time of said Lockwood a controversy had arisen between said Lockwood and Gates as to their respective rights and interests in said mortgage, and that some kind of an action had been instituted in the circuit court of Iowa county for the purpose of determining their respective rights in and to the money secured by said mortgage; that Lockwood, Gates, and the mortgagor, Hooe, were parties to such action; that it was adjudged and determined in said action that Lockwood's interest in said mortgage was $624.74; and that the interest of Gates was the sum of $1,849.54. It may also be fairly inferred, although not clearly stated, that in said action for determining the rights of said parties in and to said mortgage one Orville Strong was appointed by the court receiver for the purpose of collecting the amount due on said mortgage for the benefit of the parties interested therein, and that by virtue of such appointment said Orville Strong, as such receiver, commenced an action to foreclose such mortgage that in said action the receiver obtained a judgment of foreclosure against the mortgagor; that it was determined in such foreclosure action that the said Lockwood's interest in said mortgage, at the time judgment was rendered therein, was the sum of $524.79; that the interest of Gates was $1,794.54; and judgment was rendered in favor of the receiver for these amounts, with interest added. It is further alleged in the complaint that Reese & Carter acted as attorneys for the receiver in said foreclosure action, and that by virtue of said foreclosure judgment the mortgaged premises were duly sold by the sheriff of said county on the 11th day of June, 1881, and were bid off by Samue Reese, one of the firm of Reese & Carter, for the sum of $4,165.44; that afterwards, and on the 11th of June, 1881, Reese & Carter acknowledged the receipt of $315.44, costs of said action, from Thomas Kennedy, sheriff of Iowa county, and on the 20th day |