132 Wis. 268 | Wis. | 1907
The following opinion was filed April 30, 1907:
The former opinion sustaining the demurrer passed specifically on the question of the constitutionality of the law authorizing the appointment of commissioners and prescribing their duties and power to review county assessments made by the county boards. It is stated in the opinion “that the proceedings of the board, if conducted in good faith and within its jurisdiction, are final and conclusive, and the question to be considered is whether the allegations of the complaint show such a disregard of duty as to render its acts contrary to law and void,” and that whoever attacks the proceedings of the commissioners “must show affirmatively want of jurisdiction.” Upon examination of the complaint it was held that it did not state facts sufficient to constitute a cause of action. The plaintiff now contends that, in view of the fact that federal questions are involved in the determination of the plaintiff’s rights, this court was not, under the circumstances, one of last resort, and therefore the former adjudication by this court upon the questions involved is not conclusive on this appeal, and does not come under the rule that such former decision establishes the law of the case. We find no support for this contention in any of the authorities cited to our attention. The question
The former decision, that the complaint failed to state a cause of action, determined the question embraced in the second alleged ground of demurrer, to the effect that plaintiff has no right to sue in his behalf and that of the village and the taxpayers thereof. In its ultimate analysis this allegation amounts to an averment that plaintiff has stated no ground entitling him and those whom he claims to represent to the equitable relief demanded. It is not a ground of demurrer to his legal capacity to sue. Legal incapacity to sue implies a legal disability to sue, and in.no sense goes to the cause of action, as the averment does in the demurrer. See McKenney v. Minahan, 119 Wis. 651, 656, 657, 97 N. W. 489; Bunker v. Hudson, 122 Wis. 43, 49, 99 N. W. 448. The opinion in the former appeal does not discuss this subject at length, and it may be well to cite the following cases holding that no action in equity will lie by a taxpayer in behalf of himself and other taxpayers to restrain the levy and collection or to set aside the taxes of a municipality generally upon his own and all other property therein, but such party, if aggrieved by any error or irregularity in the assessment, is left to his appropriate legal remedy: Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733; West v. Ballard, 32 Wis. 168; Warden v. Fond du Lac Co. 14 Wis. 618; Sage v. Fifield, 68
By the Court. — Judgment affirmed.
A motion for a rehearing was denied June 20, 1907.
