(178 Wis. 642, 190 N. W. 448.)

field v. Peeden, 8 Kan. App. 671, 57 Pac. 131; West Salem v. Industrial Commission, 162 Wis. 57, L.R.A.1918C, 1077, 155 N. W. 929; State v. Chicago & N. W. R. Co. 128 Wis. 449, 108 N. W. 594; Radtke Bros. & K. Co. v. Ratzinski, 174 Wis. 212, 183 N. W. 168; Brienen v. Wisconsin Pub. Serv. Co. 166 Wis. 24, 163 N. W. 182.

Mr. John O'Meara for other respondent.

Crownhart, J., delivered the opinion of the court:

This court has many times held that the Compensation Act is to be liberally construed to carry out its manifest purpose. That purpose is to relieve workmen from the distress of work accidents, by placing a portion of the burden upon the employers, and through such employers, in the cost of production, upon the people as a whole. passing this act the legislature made it elective as to private employers, but, having in mind that the state and municipalities should set a good example, made the law mandatory as to them.

In

In this case we have a workman working for the town on its highways, to pay an obligation of his to the town. He had his choice to pay this obligation in cash or in labor. This Stat. 1917, § 1248. was the offer presented to him by law, and his election to pay in labor completed an implied contract of service. When he went to work, he was an employee of the town, and the town was his employer. His relation to the town was no different than that of an employee working beside him for cash under the same direction and supervision. Had the the deceased paid his obligation in cash, then the town would have taken the cash to employ some other workman to do the same work in the same way as was done by the deceased. In that case the town would have had to compensate such workman in case of injury. The distinction between the two kinds of workmen is too subtle and technical to be within

the spirit and purpose of the law. The following cas

compensation

es seem to justify Workmen's
our conclusion that injury to one
deceased
employee

working out was an highway tax.

at the

time of his injury: Elder v. Bemis, 2 Met. 599, 604, 605; Re Ashby, 60 Kan. 101, 55 Pac. 336, 338; Winfield v. Peeden, 8 Kan. App. 671, 57 Pac. 131.

The judgment of the lower court is affirmed.

Rosenberry, J., dissenting:

The question is whether or not the deceased was in the service of the plaintiff town under a contract of hire, express or implied, oral or written. Wis. Stat. § 2394-7. To my mind an analysis of the relationship existing between the taxpayer and the town in this case does not disclose a single contractual element. It is true that there rests upon the taxpayer an obligation to discharge his liability to the town for the amount of tax assessed against him, but this obligation arises out of the exercise of sovereign power on behalf of the state, and not out of any contract entered into between the plaintiff town and the deceased. As was said in Peirce v. Boston, 3 Met. 520: Taxes are not "contracts between party and party, either express or implied; but they are the positive acts of the government through its various agents, binding upon the inhabitants, and to the making or enforcing of which their personal consent, individually, is not required." 26 R. C. L. p. 25, ¶ 11, and cases cited.

A liability imposed by statute, and not assumed by the voluntary agreement of the parties, is not a contract at modern law, even if it is a liability upon which an action of debt could have been maintained at common law. 1 Page, Contr. 2d ed. § 66; 1 Cooley, Taxn. 3d ed. p. 17; State v. Chicago & N. W. R. Co. 128 Wis. 449, 108 N. W. 594. statute liability wants all the elements of a contract, consideration and mutuality, as well as assent of

A

the parties. McCoun v. New York C. & H. R. R. Co. 50 N. Y. 176.

It may be argued that the statutory provision, by virtue of which the deceased was permitted at his option to discharge his obligation. by performing labor rather than paying money, amounts to an offer, and that his decision to discharge his obligation by the performance of labor is an acceptance of the offer. Even if it should be so construed, it lacks all elements of mutuality; it being an obligation imposed by the state upon the town and the taxpayer without the consent of either. It appears quite clearly, however, that the right to work out a road tax is a valuable right, which may not be denied to the taxpayer, and that, in order to entitle the state to collect the tax in money, the provisions of the statute must be complied with, and failure to give the proper notice of the time and place at which the work may be performed under a statute requiring it is not mere irregularity. Biss v. New Haven, 42 Wis. 605; note in 74 Am. St. Rep. 668.

The nature of the power exerted

by the state is further shown by the fact that the state may require the performance of labor, and in the event of the failure of a taxpayer to discharge his obligation it may be enforced by fine and imprisonment. Sims v. Hutcheson, 72 Ga. 437, 37 Cyc. 334.

The mere fact that superficially the relation existing between the deceased and the town resembled that of master and servant does not make the relationship one arising out of a contract of hire, express or implied. It must have been the intent of the legislature, in using the words, "arising out of contract, express or implied," to indicate precisely what liabilities municipalities were to assume. There being no contractual element in the relationship between the taxpayer discharging his liability by the performance of labor rather than the payment of money, I am unable to agree with the decision of the court in this case.

I am authorized to state that Mr. Justice Eschweiler and Mr. Justice Jones concur in this dissent.

ANNOTATION.

Workmen's compensation act: one working out road tax as within act.

An extended search has disclosed no case other than the reported case (GERMANTOWN v. INDUSTRIAL COMMISSION, ante, 1284, on the question whether one working out a road tax is within the workmen's compensation act. The terms of the statute involved in that case obviated the question that arises under some of the acts, as to whether a town or other governmental body may be an employer within the purview of the act. The conclusion as to whether any particular claimant whose status or relationship does not clearly exclude him from the category of the employees may be regarded as within that category is likely to be influenced by the court's view of the spirit and purpose of the act, and the disposition to construe it broadly and liberally, or narrowly and strictly, as

well as by considerations, drawn from cases not involving the act, respecting the technical legal relationship between the claimant and the person propounded as his employer.

Even upon the narrower ground, however, the conclusion of the majority receives some support from the cases cited in the opinion. In Re Ashby (1898) 60 Kan. 101, 55 Pac. 336, a man working on the streets of a city under an ordinance requiring the performance of two days' labor in lieu of the payment of a poll tax was held to be a laborer for the city within the meaning of a statute known as the "Eight-hour Law," limiting the hours of labor of all "laborers, workmen, mechanics or other persons . . employed by or on behalf of the state

county, city, township or other municipality." The court said. "It is impossible to draw a distinction between the case of one man who works out his own poll tax, and of another employed by the city to work two days for $3 collected from a third, who chose to pay in money rather than to work out his tax. That the latter laborer would fall strictly within the provisions of the law is clear. He would be a laborer employed on the public streets, and paid directly by the city."

Upon the authority of the Ashby Case it was held in Winfield v. Peeden (1899) 8 Kan. App. 671, 57 Pac. 131, that the relation between a city and one performing labor for the city in

lieu of his poll tax, was that of employer and employee, the action being for an injury sustained by such person as the result of negligence of the city in respect of a gravel bank, and the failure to warn him of the danger in connection therewith.

In Elder v. Bemis (1841) 2 Met. (Mass.) 599, also cited in support of the conclusion of the majority in the reported case, it was held that one employed in working out another's highway tax under the superintendence of the surveyor of highways was the servant of the surveyor, rather than of the person whose tax he was working out, the action being by the latter for trespass based on the servant's act. J. T. W.

H. R. JACOBS, Plff. in Err.,

V.

H. M. WALKER, Surviving Partner of the Partnership of Walker

Where, in an action of replevin, the defendant executed a redelivery bond for a horse taken by the sheriff under an order of replevin, and the horse died during the pendency of the action, in which it was decided that the plaintiff was the owner and entitled to the possession of the horse, the defendant and his sureties are liable to the plaintiff on such bond for the value of the horse.

[See note on this question beginning on page 1290.]

Headnote by KENNAMER, J.

ERROR to the District Court for McClain County (Coffman, J.) to review a judgment in favor of plaintiff in an action brought to hold defendant liable on a redelivery bond. Affirmed.

The facts are stated in the opinion of the court. Messrs. Glasco & Glasco for plaintiff in error.

Mr. W. L. Eagleton, for defendant in error:

A surety on a redelivery bond is bound by the judgment in the replevin action.

Boyd v. Moore, 34 Kan. 119, 8 Pac. 255.

The measure of recovery by the successful party is not affected by the death or destruction of the property in suit, in the hands of the other party, whether by accident or through the fault of the latter.

Jones v. Funstrobe, 25 Ga. App. 92, 102 S. E. 541; 34 Cyc. 1550-1552.

(90 Okla. 209, 216 Pac. 935.)