Town of Holland v. Village of Cedar Grove

282 N.W. 111, 230 Wis. 177, 1939 Wisc. LEXIS 60

• Court: Wisconsin Supreme Court
• Decided: February 7, 1939
• Status: Published

Opinions

The following opinion was filed November 9, 1938:

Rosenberry, C. J.

In this case there are the same procedural defects that were dealt with in Milwaukee County v. Industrial Comm. (1938), 228 Wis. 94, 279 N. W. 655. For the reasons stated there the circuit court had jurisdiction to review the record made before the Industrial Commission. In that case the appeal was taken by the Industrial Commission and the appeal was dismissed for the reason there stated, the Industrial Commission not being a party under the statute. In this case the appeal is taken by a party and this court acquires jurisdiction thereby.

From the complaint and the findings of the Industrial Commission it appears that the villag-e of Cedar Grove is a municipal corporation within the county of Sheboygan; that the town of Holland is a municipal corporation within said county. It is alleged that Herbert Prange and his wife, Louise Prange, had their legal settlement in the town of Holland up to the time of her death on December 13, 1936;

“That on or about April 1, 1935, said Herbert Prange and Louise Prange became in need of relief as poor persons in said village of Cedar Grove, and had no money or property to pay their board, maintenance, attendance, and medical aid, they then having no legal settlement in said village of Cedar Grove and having their legal settlement in said town of Holland. That on or about April 10, 1935, said Herbert Prange made and filed with the clerk of said village of Cedar Grove a sworn written statement that his legal settlement was in said town of Plolland.”

That thereupon the said village of Cedar Grove provided such assistance for said Herbert Prange. and’ Louise Prange as it deemed just and necessary, and paid same out of the treasury of said village.

It is then alleged that the proper statutory notices were served; that the total amount of relief furnished between April 1, 1935, and December 28, 1936, amounted to $970; that no part of the claim has been paid by Sheboygan county or by the town of Holland, and that the town of Plolland disallowed said claim and the whole thereof. Plaintiff prays that it have a determination or judgment against the county of Sheboygan and the town of Plolland for said sum.

Upon the trial the Industrial Commission found that the Pranges were legally settled in the town of Holland and entered a determination.

“That the secretary of state shall collect from the town of Plolland as a state special tax according to law in such case made and provided, the sum of $981 and that the state treasurer shall remit such amount so collected tO' the village of Cedar Grove.”

The circuit court affirmed the findings of the Industrial Commission under the rule that if there was any credible evidence to support it, the findings must be affirmed.

While the question does not appear to have been raised either before the Industrial Commission or the circuit court, it is contended here that the statute, sec. 49.03 (8a), which in par. (a) confers upon the Industrial Commission—

“the jurisdiction and power and duty to' hear, try and determine such claims and render decisions thereon between counties and between counties and other municipalities,”

and prescribes the procedure therefor is unconstitutional and void for the reason that it delegates to the Industrial Commission judicial power which is vested by the constitution (sec. 2, art. VII) in the courts.

In order to- determine the question presented it will be necessary for the court to analyze and explore the provisions of the statutes relating to the relief of poor persons. (Ch. 49, Stats.)

Sec. 49.03 (1), Stats., provides: “When any person not having a legal settlement therein shall be taken sick, lame, or otherwise disabled in any town, city or village, or from any other cause shall be in need of relief as a poor person and shall not have money or property to pay his board, maintenance, attendance and medical aid and shall make a sworn statement as to his legal settlement, the town board, village board or common council shall provide such assistance to such persons as it may deem just and necessary, and if he shall die, it shall give him a decent burial. It shall make such allowance for such board, maintenance, nursing', medical aid and burial expenses as it shall deem just, and order the same to be paid out of the town, city, or village treasury.”

This subsection is, in substance, the same as sec. 20 of ch. 28 of the statutes of 1849. There have been some amendments, but none which are material so far as determination of the questions raised in this case are concerned. While the relief to be furnished under sub. (1) seems to be for temporary purposes, sub. (S) provides:

“The authorities having charge of the poor of the municipality in which such person claims a legal settlement, and until they shall do so, the authorities having charge of the poor of the county in which such person may be, may take charge of such poor person and relieve him in such other manner as they deem proper.”

While the question does not seem to have been considered in this state, it has been held in other jurisdictions under statutes similar to sub. (1) that the state commits to the municipal authorities the quasi-judicial duty of determining first whether the person is in need of relief, and, second, what amount should justly be allowed for relief. It has been held that where they act in good faith and without abuse of discretion their action is not subject to review. Hardin County v. Wright County (1885), 67 Iowa, 127, 24 N. W. 754; Board of Commissioners of Warren County v. Osburn (1892), 4 Ind. App. 590, 31 N. E. 541; Wood v. Boone County (1911), 153 Iowa, 92, 133 N. W. 377, 39 L. R. A. (N. S.) 168.

If the local authorities determine that a transient is justly in need of an allowance for relief it is their duty to- furnish it, and the expenses are to- be borne by the town, city, or village treasury. Sub. (2) provides that “the expenses so incurred shall be a charge against the county.”

Sub. (3) provides that the clerk of the municipality furnishing the relief shall within ten days after such person becomes a public charge serve upon the county clerk of his county a written notice, stating the name of the person who has received public aid, the name of the municipality where such person claims a legal settlement or, if such place could not after due diligence be ascertained, a statement of such fact, and the date on which such support was furnished. It is further provided that if notice should not be given within ten days, the county shall be liable only for the expense incurred thereafter.

Sub. (4) provides that the county clerk shall file such notice in his office, and within ten days after receipt thereof shall serve like notice upon the county clerk of the county in which such person claims his legal settlement, and the county clerk is charged with the duty of at once forwarding such notice to the clerk of the town, city, or village in which such person claims legal settlement. If the municipality of legal settlement is within the same county as the municipality furnishing transient relief, the county clerk is to notify the clerk of that municipality. In case of failure to- file such notice, then the municipality of legal settlement shall be liable for the expense incurred only for the time after the giving of the notice. If the clerk of the town, city, or village notified shall fail to deny responsibility within ten days from the time of receipt of the notice, such municipality shall be liable for the expense and support of such poor person until such denial shall be sent to the clerk of the municipality or county giving the relief.

Sub. (6) provides: “The clerk of any municipality which may disallow a claim for such expenses or any part thereof, shall within ten days after such disallowance, notify in writing the county clerk of the county making such claim of the action thereon. ...”

Sub. (7) provides: “Upon receipt of notice of the dis-allowance of the claim of any county, the county clerk receiving such notice shall forthwith notify the district attorney of his county, who' shall be authorized and empowered to institute an action in the name of the county, for the recovery of so much of said claim as shall have been disallowed. . . .”

In our consideration of the questions raised here we shall consider the matter as if all of the requisite statutory notices had been given when and as required. Any other method of treatment would require constant exception and repetition.

In the first place, it is to be noted that the relief is to be furnished by the municipality where the transient poor person is found in need of it. When furnished it is to be paid for out of the municipal treasury. The expenses so incurred shall be a charge against the county. Under the language of the statute, the county in which the municipality furnishing-relief is located, is made liable for the acts of the municipal authorities furnishing relief. If the county cannot collect from the municipality of local settlement'under the statute, the county becomes liable for the amount‘of relief furnished. The liability of the county is in no way dependent on the right to recover the amount allowed from the municipality of legal settlement. If the transient has no legal settlement within the state the burden falls upon the county. The language of sub. (2) is : “The account therefor shall be audited by the county board and paid out of the county treasury.” The county is given no option. No doubt this is subject to the rule that qualifies all official action, that is, that the officers making the allowance shall act in good faith, without abuse of discretion or fraud. No action can be begun under the statute except by the county in which the relief is furnished. Such cases as Holland v. Belgium (1886), 66 Wis. 557, 29 N. W. 558, are not in point for the reason that the statutes of 1878, sec. 1514, gave the town furnishing relief a cause of action against the municipality of settlement. We have not cited and commented upon all of the cases because of the numerous amendments to the statutes. To set out the statutes and point out the distinctions would unduly extend this opinion and serve no useful purpose. In some cases the questions dealt with in this case were not raised.

In this case it appears from the allegations of the complaint that Sheboygan county, the county in which the village of Cedar Grove is situated, has declined to comply with the statute. In such an event it would appear that the authorities of Sheboygan county have refused and failed to perform a plain ministerial duty for which the village of Cedar Grove has ample remedy in the law. Sec. 49.03, Stats., makes no provision for an action by anyone except by the county where the relief is furnished ag'ainst the municipality of settlement. The language of sub. (2) of the statute is :

“The account therefor shall be audited by the county board and paid out of the county treasury, and may be recovered by said county of the town, city or village in which such person so relieved has a legal settlement.”

The language of this subsection is clear and explicit. The county cannot by refusing or failing to perform its statutory duty under sub. (2) require a town within its borders furnishing relief to commence an action against it. It may of course be subject to an action to compel the county authorities to comply with the statute.

In this connection the language of sub. (7) is to be noted:

“Upon receipt of notice of the disallowance of the claim of any county, the county clerk receiving such notice shall forthwith notify the district attorney of his county, who shall be authorized and empowered to institute an action in the name of the county,” etc.

The only action to be begun is by the county against which the relief is charged against the municipality of legal settlement. This clearly applies to counties and not to the municipality furnishing relief. This conclusion is strengthened by the provisions of sub. (7) which provide that no county shall be required to give a bond, etc. The provisions of sec. 49.03 (1) to and inclusive of sub. (8), Stats., have in substance been in the statutes for many years, and were substantially the same at the time of the enactment of ch. 453, Laws of 1935, creating sub. (8a), the constitutionality of which is now being attacked.

Sub. (8a) (a) provides : “Such action shall be commenced before the industrial commission,” etc. This language must of necessity refer to the action which the district attorney is authorized to bring when he receives notice of the disallowance of the claim of the county from the county clerk of his county. (See sec. 49.03 (7), Stats.) In such an action what questions are open for adjudication? They are first, Was the person furnished relief a poor person ? And, second, Where did the poor person have his legal settlement ? This court has held that whether the person furnished with relief is a poor person is a question of fact. Sheboygan County v. Sheboygan Falls (1906), 130 Wis. 93, 109 N. W. 1030; Holland v. Belgium (1886), 66 Wis. 557, 29 N. W. 558. Whether or not the poor person was legally settled in the town claimed is to' be determined in accordance with the provisions of sec. 49.02, and is likewise a question of fact. When these two questions of fact have been determined, and there has been no' abuse of discretion or fraud on the part of the officers furnishing relief, the whole matter has been determined. There is no more reason to suppose that municipal officers furnishing relief will act fraudulently or abuse their discretion than there is to suppose that any other administrative officer will so act. If they do so act there is ample remedy in the law for all parties whose interests may be affected.

Sec. 49.03 (8a), Stats., commits to the Industrial Commission the power and duty to hear, try, and determine such claims. The decisions as to the need of the poor person and the kind and amount of relief to be allowed him being committed to officials furnishing the relief and made a charge against the county in which the relief is furnished, no other questions remain open for consideration but those relating to the status and place of settlement of the person furnished relief. To meet this simple situation there is provided by sub. (8a) an elaborate procedure in which language applicable only to courts having full judicial powers is used, and which if given its literal meaning- would constitute the Industrial Commission a glorified court of illimitable jurisdiction in matters relating to relief. It is the failure to recognize the nature of the subject matter dealt with that undoubtedly led the legislature to employ the terms used. While it speaks of an action, the proceeding under the statute is not an action. No judgment is to be rendered or entered, and while it provides for a trial it provides for no jury, although the subsection contains a provision in par. (b) to.the effect that—

“Raws on pleadings, procedure, and evidence shall govern unless inapplicable.”

The Industrial Commission is given power in par. (a) to “make such rules and regulations not inconsistent herewith” as will enable it to effectually perform its duties, etc. If the law relating to pleadings and procedure applies there would seem to be no need for other rules. To make assurance doubly sure it is provided in par. (a) that “it [Industrial Commission] shall not be restricted because of failure of enumeration of powers.”

What happens in a proceeding under the provisions of sub. (8a) is that in case of dispute within the narrow limits prescribed by sub. (7), the commission is given authority to determine whether the person aided was a poor person and what municipality was the place of his legal settlement. This is a purely fact-finding function. When the facts are determined, or if there is an appeal, when the matter is finally determined upon appeal, the commission is to certify the amount determined, which will be the amount of relief furnished, to the secretary of state. The amount so certified is to be collected as are other special state charges against counties and municipalities. Disregarding, as we must, the over-elaborate language of the act, and looking to the substance rather than to the form of things, the question presented for decision is, Does the act which confers upon the Industrial Commission power to determine the facts delegate to the Industrial Commission judicial powers which may be exercised only by a court? In recent years the matter of the delegation of judicial powers to administrative agencies has produced many serious and perplexing questions. The matter was dealt with in a very comprehensive and learned opinion by the supreme court of the state of. New Hampshire, Opinion of the Justices (1935), 87 N. H. 492, 493, 179 Atl. 344, 110 A. L. R. 819. ' In the course of its opinion the court said:

“In the connection between the departments some overlapping is permissible, and there is a region of authority, alternative and concurrent, the boundaries of which are fixed by no final rule. As a rule which meets most sitúa-tions, when an executive board has regulatory functions, it may hear and determine controversies which are incidental thereto, but if the duty is primarily to decide questions of legal right between private parties, the function belongs to the judiciary. . . .

“The creation of an executive board is justified if its service is to determine añd maintain a public right or interest. To accomplish its purposes judicial powers may be necessarily exerted. But they must concern matters of an executive character. They are proper if it may fairly be said that there is need of them in order to produce an efficient and effective administrative enforcement of the public interest.”

By way of illustration the court refers to the matter of taxation and to the fact that taxing officers exercise many judicial functions. No doubt a larger measure of judicial power may be conferred upon an administrative tribunal as a necessary incident to the discharge of its functions than could be conferred upon it in a matter wholly independent of the discharge of its primary duties. The determination of the extent of the power which may be granted depends under the decision to a considerable degree upon the necessities of the situation.

In this case we are not dealing with private parties. No interest is involved except that of the public. By sub. (8a) the Industrial Commission is given the power to determine no questions except those .arising in a controversy between municipalities. The whole matter of poor relief is of statutory origin. Municipalities in the absence of statute are under no obligation to furnish relief to poor persons. That was true at common law and is still true although relief has been furnished under statutory provisions so long that in the minds of the general public it is now regarded as a municipal duty. Patrick v. Baldwin (1901), 109 Wis. 342, 85 N. W. 274. See also Martin v. Fond du Lac County (1906), 127 Wis. 586, 106 N. W. 1095. For citation of authorities see 39 L. R. A. (N. S.) 161. There are no equities between municipalities in respect to caring for and supporting pau.pers. The whole matter being purely and strictly statutory, there is no liability where a statute imposes none. Morristown v. Hardwick (1908), 81 Vt. 31, 69 Atl. 152. The matter of poor relief being of purely statutory origin, the legislature has very large powers with respect thereto'. It may impose duties and liabilities upon its creatures, the various municipal corporations of the state, in accordance with its discretion provided no provision of the constitution is violated. Except with respect to their property rights municipal corporations have a limited protection against acts of the state legislature under the constitutional guaranties. Tn a well-considered case, the Connecticut supreme court of errors said :

“Municipalities, as political subdivisions of the state, created for public purposes and having their powers, rights, and duties conferred and imposed by the state through the legislature, are subject to its will and liable to' have any such rights or duties modified or abolished by it, and not to be regarded as thereby being deprived of any vested rights.” Sanger v. Bridgeport (1938), 124 Conn. 183, 198 Atl. 746, 116 A. L. R. 1031, 1035. See authorities cited in note beginning at page 1037.

This is the general rule and it is the rule in this state. Municipal corporations have no private powers or rights as against the state. They may have lawfully entered into contracts with third persons which contracts will be protected by the constitution, but beyond that they hold their powers from the state and they can be taken away by the state at pleasure. Richland County v. Richland Center (1884), 59 Wis. 591, 18 N. W. 497; Frederick v. Douglas County (1897), 96 Wis. 411, 71 N. W. 798.

The legislature having full power with respect to the furnishing of poor relief, it may prescribe the conditions under which it is to be furnished; the municipality to be charged with the duty of furnishing it and what municipality shall be ultimately liable. May a municipality complain because the legislature has seen fit in the administration of relief matters to vest the determination of certain factual matters in an administrative agency? The plaintiff contends that that question must be answered in the affirmative upon the authority of State ex rel. McCurdy v. Tappan (1872), 29 Wis. 664. That case involved a controversy respecting the payment of bounty money to a soldier. The legislature enacted a law by the terms of which it became the duty of the town of Oshkosh to pay the amount to the relator. The act of the legislature was held invalid on the ground that it adjudicated the liability of the defendant town. This it was held the legislature could not do. In the opinion reference was made by way of argument to the fact that the act also deprived the defendant town of the right of trial by jury. It is to be remembered in that case it was a contest between a private party and a municipality. It was a matter over which the court held that the legislature did not have plenary power such as it has over municipalities with relation to strictly governmental affairs.

This court has repeatedly held that the judicial power vested by the constitution in the courts cannot be exercised by administrative or executive agencies.

Having under consideration a statute which conferred upon the railroad commission, which among other things, authorized the commission—

"to do such things and pay such amounts as shall be just and necessary or proper, to place the state, the company, or the purchaser in the same situation that it, or they, would have been in had the provisions of such sections and of such permit been complied with”—

it was held in effect to confer upon the railroad commission the powers of an equity court and it was for that reason void. Klein v. Barry (1923), 182 Wis. 255, 263, 196 N. W. 457.

Every constitutional objection that may legitimately be urged against,sub. (8a) was considered by this court in the case of Forest County v. Langlade County (1890), 76 Wis. 605, 606, 45 N. W. 598. By ch. 436, Laws of 1885, Lang-lade county was divided and Forest county created by the act. It was provided that the county boards of the respective counties should meet at the courthouse at Antigo—

“to adjust and settle all matters of property, debts, credits, assets and liabilities of Langlade county on the day when this act shall take effect, and for that purpose each and both of said county boards shall have all the powers necessary to a full and complete settlement of all matters between said counties. The territory hereby detached from Lincoln county and attached to Langlade county shall be liable for and chargeable with its just proportion of all the indebtedness of Lincoln county at the date when this act shall take effect, but. shall not be liable for any of the indebtedness of Langlade county incurred prior to the taking effect of this act.”

Ch. 334, Laws of 1885, was a general law and provided a method whereby the liabilities between municipalities newly created and the municipalities from which the territory was taken might be adjusted. The county boards of Forest county and Langlade county were unable to agree, and the legislature enacted ch. 537, Laws of 1887, to meet the situation. Ch. 537 provided that the judge of the Tenth judicial circuit should appoint three commissioners, one from Lang-lade county, one from Forest county, and one from the state at large, for the purpose of making a settlement. The commissioners were duly appointed, and from their decision an appeal was taken in accordance with the provisions of the act to the circuit court. The determination of the commissioners was appealed to the circuit court, and from the decision of the circuit court appeal was taken to this court. When the controversy was heard in this court it was claimed that ch. 537, Laws of 1887, was void because it unlawfully delegated judicial powers to the commissioners. The court said (pp. 610, 612) :

“If this act be unconstitutional for that cause, then all the laws of this state which submit questions involving the rights of persons to any officers, boards, or persons other than the regularly constituted courts of the state, are void for that reason; the laws requiring certain claims against towns, counties, cities, and villages to be first submitted to the boards of supervisors of towns and counties, to the trustees of villages and the common councils of cities, are all void; and all laws appointing commissioners to estimate the damages of parties whose lands are taken for highways or for railroad purposes, and other laws too numerous to mention, are void. But this court has held all such laws valid in all cases where the decisions of such boards or commissioners or appraisers are not made final, and an appeal is given from their decisions to the regularly constituted courts of the state.” (Citing cases.)

“As we have shown above, the legislature has plenary power over the question of the division of the assets and the liability for the debts of the old county from whose territory a new county, either in whole or in part, is created. And as the legislature might fix such rights absolutely, without referring the question to any other officers or to any court, it might be argued with great force they could provide for the determination of that question by commissioners or a board appointed for that purpose, and make their decision final. We do not, however, decide that question in this case.”

The questions submitted to the commissioners to be appointed by the judge of the Tenth judicial circuit were very much broader in scope than matters submitted to the Industrial Commission by the provisions of sub. (8a), yet the act was upheld and the doctrine announced in that case has never been overruled or criticized so far as we are aware. We perceive no difference in principle between Forest County v. Langlade County and the case under consideration. The legislature was dealing with the rights of municipal corporations as against each other in a matter over which it had plenary powers. The determination of the commissioners is not final under the provisions of the statute which created the commission to settle the disputes between Forest county and Langlade county, nor is the determination of the Industrial Commission final under sub. (8a). If anything the power of the legislature with respect to the duties and liabilities of municipalities for furnishing poor relief are more extensive than those respecting division of property belonging to two different municipalities. The statute makes no provision for the review of the determination of the municipal authorities who are required in the first instance to determine what allowance is just and to1 whom allowances may properly be made. Under the provisions of sub. (8a) the function of the Industrial Commission is purely that of fact-finding, and when the facts are found, they are directed to certain findings to the proper authorities. No individual rights are involved, either directly or remotely, and the constitutional guaranties as to individual rights for that reason have no application. Having in mind the nature of the powers conferred and the duties imposed upon the Industrial Commission by the provisions of sub. (8a) instead of the meaning of the inappropriate terms used in the act, it is considered that the subsection is valid and does not confer upon the Industrial Commission the exercise of judicial power which belongs exclusively to the courts.

We are unable to discover any statutory authority for the bringing of an action by the village of Cedar Grove against Sheboygan county such as was brought in this case. The terms of the statute are mandatory. The town board shall provide assistance, it shall make such allowance as it shall deem just, the expense incurred by it shall be a charge against the county. It is just as much the duty of the county to pay the expense incurred by the town as it is for the town to furnish the relief. The duties imposed are in exactly the same category. If the county authorities should refuse to audit and pay the claim it would seem that mandamus is the proper remedy and not an action at law. Certainly the town furnishing the relief is required tO' file no claim, but merely an account which it becomes the duty of the county board to audit and pay. Nor has the county of Sheboygan under the terms of the statute any claim against the town of Holland until it has paid the claim. If the clerk of the town of settlement fails to deny responsibility by registered mail, the town of settlement becomes absolutely liable under the statute until it is sent. The only ground upon which the town of settlement can deny liability is that the person for whom allowance was made was not a poor person and had no settlement within the town. If the poor person had a settlement, and was furnished relief and was a poor person, the statute fixes the liability.

Upon the merits of the case we have carefully considered the evidence, the findings of the Industrial Commission, and the decision of the circuit court. The finding- to the effect that Herbert Prange and his wife had a legal settlement in the town of Plolland on April 1, 1935, and that it continued down to and including December 18, 1936, is amply supported by the evidence. Upon the merits no other question is raised.

Attention is again called to the fact that sub. (8a) (b) provides:

“Laws on pleadings, procedure, and evidence shall govern unless inapplicable and counterclaims may be heard and disposed of in the principal action.”

Sec. 263.14 (1), Stats., defines counterclaim. “The counterclaim mentioned in sec. 263.13 must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the following causes of action.” Under this definítion just how there can be a counterclaim in a proceeding under sub. (8a) in which no judgment is ever rendered we are unable to see. Nor is “action on account of a statutory liability” one of the class of actions enumerated in sec. 263.14 (1). It is another instance of the improvident use of language. What was intended, it may be supposed, was that in case of mutual claims there might be, when the claims were duly established, some offset. Just how that situation might arise under the statute it is difficult to say, but it might arise in a very limited class of cases. Inasmuch as the statute provides for counterclaims and not for offsets and there can be no counterclaims, that provision of the statute must be treated as surplusage.

A disposition of the case presents some difficulties. The whole proceeding began by the village of Cedar Grove filing a so-called complaint against the county of Sheboygan and the town of Holland. As already pointed out, it was the duty of the county of Sheboygan to pay the claim, and in the event that it refused to do so, the remedy of the village of Cedar Grove was by mandamus to compel the performance of a statutory duty. The statute makes no provision for a liability direct from the town of settlement to the town furnishing relief. The matter is canalized through the county board. Sheboygan county has no claim against the town of Holland because it has made no payment. The whole matter is treated procedurally as if the Industrial Commission had all of the powers of a court of equity to settle claims and disputes not according to the mandate of the statute but according to the equities of the case. It is not necessary to say that it has no such power, nor could such power be conferred upon it. Upon the record as it stands we see no other disposition of the matter than to reverse the judgment of the circuit court, with directions to the circuit court to set aside and vacate the award upon the merits without prejudice to the right of the municipalities involved to assert such rights as they may have in a proper proceeding under the statutes.

By the Court. — The judgment is reversed, and the cause is remanded with directions to enter judgment as indicated in the opinion.