Anderson v. Milwaukee, 113 Wis. 1.

iff the salary incident to the office of member of the board of review of the city of Milwaukee for the time he was a member thereof, or any part thereof. The amount due for such services is $2,160, for which, with interest and costs, judg ment is demanded.

The defendant demurred to the complaint for insufficiency. The demurrer was sustained, and plaintiff appealed. C. H. Hamilton, for the appellant.

For the respondent there was a brief by Carl Runge, city attorney, and R. S. Witte, assistant city attorney, and oral argument by Mr. Runge.

MARSHALL, J. As we view this case it is too plain to warrant more than a brief reference to the grounds of appellant's claim and the reasons why the authority upon which counsel mainly relies to sustain the complaint (Powers v. Oshkosh, 56 Wis. 660), does not apply. In that case it was held that the city clerk was entitled to the statutory compensation incident to the office of member of the board of review, because he served under sec. 1060, R. S. 1878, which expressly provides that the city clerk, for such services, shall receive the compensation allowed by law to assessors, and the charter defined the duties of the clerk, omitting any mention of service as member of the board of review, and fixed his compensation for the performance of such duties. In that situation it was clear that the clerk was entitled to the charter salary for the performance of the duties imposed on him thereby, and also to pay under sec. 1060, R. S. 1878, for performance of the duties imposed thereby, nothing inconsistent therewith appearing in the charter. Here the situation is radically different. The charter of respondent requires the clerk to perform, as one of his duties, that of a member of the board of review. Sec. 12, subch. XVIII, ch. 184, Laws of 1874. As amended by ch. 376, Laws of 1897, it fixes the salary incident to the of

Wanderer v. Bahr, 113 Wis. 3.

fice of city clerk at $2,500 per annum, that to be "in full compensation for all services performed by him in his official duties as such city clerk." So, it will be seen that the clerk's duty to act as a member of the board of review is a charter duty, one for which the salary of $2,500 is allowed as clearly as for any other such duty.

It is argued that the words, "full compensation for all services performed by him in his official duties as such city clerk," indicate that the obligation to serve as a member of the board of review was not in the legislative mind in fixing the salary incident to the clerk's office. We cannot adopt that view. It does not seem to accord with the letter or the spirit of the law. As before indicated, the duty to serve as a member of the board of review is one of the official duties of the city clerk. The indications all point to a legislative purpose to so frame the law as to leave no room for the clerk to reasonably claim any compensation from the municipality for any services performed by him for it, by reason of his official position, outside of the salary of $2,500.

By the Court.-The order appealed from is affirmed.

IN RE ASSIGNMENT OF LANGE & LEIHAMMER MANUFACTURING COMPANY: WANDERER, Respondent, vs. BAHR, Assignee, Appellant.

January 8-January 28, 1902.

Voluntary assignment: Examination of books of assignor: Costs, when chargeable to estate: Primary liability of creditor therefor.

Sec. 1693b, Stats. 1898, provides that an assignee for the benefit of creditors, or any creditor of the assignor, may have an order for the inspection of the books of the assignor, etc., and that "if such examination is held at the instance of the assignee the

Wanderer v. Bahr, 113 Wis. 3.

expense thereof shall be chargeable to the estate; otherwise at the expense of the creditor or the estate as the officer before whom it is held shall determine and certify that it was instituted for the benefit of the creditors or for other reasons." Held:

(1) Expenses incurred by creditors, prior to the examination, for the services of expert accountants are no part of the expenses of the examination which may be charged against the estate.

(2) The creditor instituting the examination is primarily liable for the expenses thereof, and if the expenses are certified as properly chargeable to the estate, they are payable to such creditor and not to the person who rendered the services on the examination.

(3) If the officer certifies that an examination, instituted by creditors, was instituted for the benefit of creditors, the expense thereof must be paid by the creditors; if for other reasops then the expense must be paid by the estate.

APPEAL from an order of the circuit court for Milwaukee county: LAWRENCE W. HALSEY, Circuit Judge. Reversed.

On July 30, 1898, the Lange & Leihammer Manufacturing Company made a voluntary assignment to appellant, William A. Bahr, who accepted said trust and duly qualified as assignee. Thereafter Riemer & Brodesser, as creditors, instituted proceedings before W. J. McElroy, a court commissioner, for an examination of the books and the officers of said assignor and others, under sec. 1693b, Stats. 1898. Such examination was had, and the commissioner made a certificate that the proceeding was instituted in good faith and for the benefit of the creditors of the assignor, and that the expense should be paid out of the funds in the hands of the assignee. He taxed such expenses as follows:

Attorney fees to L. G. Wheeler

$75 00

Fees for expert accountant, Geo. H. Cronyn, who examined the books of the assignor

150 00

Fees to the undersigned court commissioner

65 74

Total

$290 74

Wanderer v. Bahr, 113 Wis. 3.

Thereafter the respondent filed a petition in the circuit. court, and obtained an order to show cause on the assignee why he should not pay him said sum of $150, as the assignee of Cronyn. His petition sets out the assignment, the order for examination, and the proceedings thereunder. He then adds:

"That in order to facilitate said examination, and for the purpose of enabling the creditors of said assignor to obtain additional facts in relation to its books and accounts, one George H. Cronyn was employed as an expert accountant, and rendered services in that capacity prior to said examination, and for the purpose of enabling the creditors to ascertain the full facts in relation to the business transactions of the said assignor; that said services so performed by said George H. Cronyn were valuable, and for the benefit of the creditors of said assignor."

He also alleged an assignment to him of Cronyn's claim, and that the assignee had sufficient funds to pay the same. The assignee made objection to the allowance and payment of this claim on the ground that it was no part of the expense contemplated by sec. 16936, and that the inspection of the books made by Cronyn was no part of the examination made before the court commissioner, but that the claim was for services rendered at the request and under the direction of Riemer & Brodesser prior to said examination. Affidavits setting out the situation were submitted to the court, who thereafter made an order directing the assignee to pay the plaintiff the amount of said claim out of the funds in his hands. From the order so made, the assignee has taken this appeal.

For the appellant there was a brief signed by Friend & Trottman, attorneys, and M. M. Riley, of counsel, and a brief in reply by Friend & Trottman, and oral argument by James F. Trottman.

For the respondent there was a brief by Roemer & Aarons, and oral argument by C. L. Aarons.

Wanderer v. Bahr, 113 Wis. 3.

BARDEEN, J. This case presents the single question whether the claim sought to be enforced is a lawful claim against the assigned estate. Sec. 16936, Stats. 1898, provides that the assignee or any creditor may have an order for the inspection of the books of the assignor, and for his examination and that of other witnesses as to the business affairs and condition of the assignor. The last clause of the section is as follows:

"If such examination is held at the instance of the assignee the expense thereof shall be chargeable to the estate; otherwise at the expense of the creditor or the estate as the officer before whom it is held shall determine and certify that it was instituted for the benefit of the creditors or for other reasons."

The examination out of which the claim in suit is said to have arisen was instituted by Riemer & Brodesser, who were creditors of the assignor. The court commissioner certified that it was instituted in good faith and for the benefit of the creditors, and he taxed as costs of such examination the expense incurred by the moving creditors, before it was instituted, for services of an expert bookkeeper in making an inspection of the assignor's books. On the basis of such certificate and taxation the court directed the assignee to pay such claim out of the proceeds of the assigned estate. There are several reasons why this order was unwarranted. In the first place, the only expenses the court has any power to make a charge against the assigned estate are the expenses of examination. These include the witness fees, officers' fees, and such other disbursements as are reasonably neces sary in the proceeding. The expense incurred by creditors for the services of expert accountants, incurred prior to the examination, are no part of the expense thereof. It is the expense of the examination, and not the expense of creditors incurred prior thereto, that may be paid out of the assigned estate. Any other construction of the statute might lead to