Dinehart v. Town of La Fayette

19 Wis. 677 | Wis. | 1865

By the Court,

DOWNER, J.

The injunction in this case was granted on the complaint verified. If the statements in the complaint are to be taken as true, I am inclined to the opinion that the vote to raise the tax of three thousand dollars was illegal. The complaint alleges upon information and belief, that “ nine men were all that were necessary to fill the quota of said town at any time between the first day of February, 1864, and the first day of October, 1864, under any and all of the calls of the President of the United States made for volunteers for the .military service of the United States.” It appears to me that the language of the call or petition, notice and record of the meeting can be construed in no other way than as authorizing or directing the entire sum of three thousand dollars to be paid to volunteers in case the town could fill its quota. This would exceed the sum of $200 to each volunteer, authorized by the act to be paid. I think, therefore, so much of the tax as is made up of this three thousand dollars, is void. The majority of the court, however, are of opinion that the call, notice and town record do limit the sum to be paid to each volunteer, or the families of drafted men, to two hundred dollars, and that under the act the voters were not limited to the precise amount required to fill the quota, which is often unknown, but may raise more to provide against contingencies, and for these reasons and those given in the opinion in the case of Brodhead v. The City of Milwaukee, hold the tax valid.

We are of opinion that the order of the court below refusing to set aside the injunction should be reversed for the reason that it was granted ex parte, and one of the material allegations of the complaint, to wit, that above stated, without which it could not be sustained, is stated on information and belief. To sustain an injunction granted without notice, the essential allegations must be positively stated in the verified complaint, or they must be otherwise proved. It is different where an injunction is granted on rule or notice, so that the opposite party has an opportunity of denying the allegation before the injunction is granted. In such case, if the allegations on information and belief are not denied, they are taken as true.

The order of the circuit court is reversed, with costs, and the cause remanded for further proceedings.