288 N.W. 748 | Wis. | 1939
Taxpayer's action in equity by Joseph F. Handlos in behalf of himself and others against town of State Line and others commenced March 21, 1939. From a judgment for plaintiff entered June 3, 1939, the defendants appeal.
The action is by a taxpayer to enjoin the town board of the town of State Line in Vilas county from expending public *147 funds in constructing ornamental lights and sidewalks along a road in said town for a distance of about a mile, and removing buildings of private owners back from the boundaries of the road as proposed to be widened, and to enjoin defendant contractors from proceeding with the work. Trial was had to the court. Judgment was entered granting a permanent injunction against both the town authorities and the defendant contractors with costs. The defendants appeal.
The improvement involved is upon a portion of a road known as County Trunk Highway B for about a mile in length which runs east and west through a community known as Land O' Lakes. The road is sixty-six feet wide and is graded and surfaced with black-top for a width of twenty-two feet. It is level, and is straight except for a curve near its east end as it nears State Highway No. 45. Along it are located a number of business places, a post office, a church, a public school, a railway depot, and a large hotel and inn, known as the "Gateway," which "entertains hundreds of people daily both summer and winter." There are residences on both sides of the road. The resident population of the community is about three hundred as compared to five hundred in the entire town. The automobile traffic on the road is heavy. Five overhead electric lights were already located on the portion of the road proposed to be improved.
The improvement actually contemplated, tentative plans for which have been prepared by the county highway engineer, includes widening of the road from sixty-six to a hundred feet, widening the black-top from twenty-two to thirty-three feet, and moving houses back from the new road line; constructing a sidewalk on one side of the road, and constructing ornamental street lights o, n both sides. The property owners agreed to extend the road easements in consideration for the moving of their buildings. Some of the property owners, according to the testimony of the town chairman, were not financially able themselves to move their *148 buildings back. It was contemplated that the necessary grading of the additional roadway and the black-topping required would be done by the county, without cost to the town. Other facts are stated in the opinion. As appears from the foregoing statement, this is a taxpayer's action to enjoin the expenditure by the town of State Line of public funds for constructing certain proposed public improvements. The improvements involved consist of three items:
"(A) Installation of ornamental street lighting on both sides of County Highway B from the Community House east to U.S. Highway 45.
"(B) Construction of concrete sidewalks on the south side of said County Highway B from the Community House east to U.S. Highway 45.
"(C) For the moving of certain buildings situated on the south side of said County Highway B from the Chicago Northwestern R.R. Co. tracks east of U.S. Highway 45 to certain property to be purchased or acquired at the expense of the defendant town of State Line, and to construct under said buildings when so moved, basements and foundations similar to those under said buildings at the time of the removal."
Item (A) was let by the town board to the defendant Clifton Engineering Company for $8,300; item (B) to defendants Carper Turnquist for $2,605.36. The work covered by item (C) was let to defendant Axel Hill for $2,940.
The contracts involved were initiated by action taken at a special town meeting called under sec.
"For the purpose of authorizing the said town to borrow from the trust funds of the state the sum of fifteen thousand *149 ($15,000) dollars for the purpose of improving highways in said town, particularly County Highway B from Community House in said town east to U.S. Highway 45, also in said town."
The notice of the meeting given pursuant to sec.
The appellants claim that the contracts involved were authorized by the proceedings above noted. The respondent claims that under the statutes enumerating the powers of town meetings and town boards the proceedings confer no power to let the contracts and the contracts are void.
(1) It is first to be observed that when work is let or otherwise undertaken pursuant to a vote taken at a town meeting, the work to be done must be particularly designated in the resolution or proposition upon which the electors vote. The work here involved is not so designated. The particular items of work described in (A), (B), and (C) above cannot be considered as within the proposition for "improving highways in said town, particularly County Highway B from Community House in said town east to U.S. Highway 45, also in said town." It is contended that the nature of the work contemplated as covered by the proposition voted on was explained to those present at the town meeting by the county highway engineer, but we consider that a general statement made to voters present when the statement is made is insufficient to satisfy the calls of the instant situation. In submitting a works proposition by printed ballot the ballot must specifically cover or describe the works to be constructed pursuant to it so that the voter will know when he votes just what he is voting for or against. Wisconsin P. L. Co. v.Public Service Comm.
(2) It is conceded that neither the town meeting nor the town board has any powers except those conferred by the *150 statutes. The tax burden of repaying the loaned funds falls upon the taxpayers of the whole town of State Line, which includes three ordinary townships, and the three items of the contemplated improvements inure wholly or at least all but remotely to the benefit of the Land O'Lakes community.
It was held in McGowan v. Paul (1910),
Sec. 60.18 (12), Stats., authorizes a town meeting to invest the town board with the powers of village boards, where a town contains an unincorporated village, and has a population of five hundred. This statute was in force as sec. 776, sub. 13, when the McGowan Case, supra, was decided. This statute does not avail the appellants because no town meeting of the town of State Line has conferred such power on the town board. Sec. 60.29 (11), Stats., empowers town boards contract "for the lighting, when necessary to facilitate public travel, of the principal improved highways of the town, and of bridges located thereon." There are no bridges on the portion of County Trunk B proposed to be lighted. It already has five electric lights. Doubtless the town board could install such additional lights, if any, as are reasonably necessary to facilitate public travel on the portion of the road, but it is manifestly beyond reason to hold that "ornamental *151 street lighting on both sides" of the road through Land O' Lakes, at a cost of $8,300 are so necessary. Manifestly, such lighting falls within the reason of the rule of the McGowanCase, supra, that "it would seem quite unreasonable to do such work as that in question at the expense of taxpayers of a town, generally, necessarily including many persons not benefited at all by the expenditures." Sec. 60.29(11), Stats., was enacted as sec. 819, sub. 11, by ch. 245, Laws of 1917, but it appears not to have affected the application of the rule of the McGowan Case, supra, to the instant case. Sec. 60.29(11), Stats., was in force when the Greenfield Case, next-below cited, was decided. All other statutes referred to by the appellants that relate to the powers of town boards were in effect when the Greenfield Case was decided and are covered by the decision of that case. None of those statutes, whenever adopted, were then considered to affect the rule of the McGowan Case.
The case of Paul v. Greenfield (1930),
As to the sidewalk covered by item (B) of the improvements involved, we find only two statutes affecting the power of town boards as to sidewalks in unincorporated villages. Sec. 60.18(12), Stats., has been already covered. It does not apply here because the powers of village boards have not been conferred upon the instant town board by the town meeting. If the power had been conferred, the board would be bound by the power of village boards as to sidewalks, which is covered by sec. 61.43, Stats. The expense of sidewalks, when built by a village, is taxed against the abutting land, subs. (2) and (3), unless the board upon authority voted by the electors shall direct one half the cost to be paid out of the general fund of the village, sub. (5).
The only other statutes that could affect the matter would be sec. 60.29(26), Stats. That applies only when a petition has been signed by a majority of the abutting owners. No such petition has been here filed.
As to item (C) it contemplates widening the street through Land O' Lakes, and provides for moving the buildings on the land acquired for that purpose back of the new lines of the street and constructing new foundations therefor at the expense *153
of the town. Sec. 60.29(27), Stats., authorizes town boards to acquire land for widening a street, but provides that in so doing they are vested with the powers relative thereto exercised by village boards under ch. 61, Stats. This implies that in so doing they must follow the procedure of village boards. Sec.
The appellants claim that notwithstanding all that is said above the instant town board had power to borrow the $15,000 from the state trust funds and to expend it for the purpose for which it was borrowed. This contention is based on the provision of sec.
It follows that each of the contracts covering the items involved is void and its performance was properly enjoined.
By the Court. — The judgment of the circuit court is affirmed. *155