Knight v. Town of Ashland, 61 Wis. 233

61 Wis. 233 | Wis. | 1884

Tayloe, J.

The real question in the case is, Do the facts stated in the complaint constitute a cause of action-in favor of the plaintiff against the defendant town? It is not contended by the learned counsel for the respondent but that the plaintiff would have been entitled to recover under his contract the stipulated $5,000, had the town of La Pointe continued in existence, and that town had, without the consent of the plaintiff, discontinued its action against the town of Ashland. There could certainly be no doubt as to his right in such event had he demonstrated that by the prosecution of the action the town of La Pointe would have been: entitled to recover the $10,000 and interest. This, we think,.., was settled by this court in the case of Ryan v. Martin, 16 Wis. 57. Indeed, it is not claimed by the learned counsel for the respondent that the contract between the plaintiff and tbe town of La Pointe is unlawful or void for any reason; but it is claimed that the present defendant is in no way obligated to pay the claim of the plaintiff, not being a ■party to the contract, and no service having been performed ■ by the plaintiff for or on its behalf. It is very clear that no claim can be established against the defendant town in favor of-the plaintiff unless he has acquired a right to make such claim under and by virtue of the ordinance of the county board vacating the town of La Pointe and distributing its territory to the towns of Ashland, and Butternut, and the other provisions of said ordinance in respect to this aotion and the other property of the said town of La Pointe.

We think there can be no doubt as to the power of the legislature or of the county .board, exercising the legislative powers conferred upon it by the general statutes under the constitution, to create a liability on the part of the town of Ashland to pay this plaintiff for his .services in the action of the town of La Pointe against said town of Ash-land, upon the dissolution of said town of La Pointe and the annexation of a part of its territory to the town of Ashland, and especially upon its transferring to Ashland the claim which the town of La Pointe held and was prosecuting to recover. Indeed, if the compensation under said contract had been earned when the town of La Pointe was vacated, so as to have been a claim actually due from said town to the plaintiff, then tire authorities are that the simple vacation of the town by legislative authority, and the attachment of its territory to the town of Ashland and the town of Butternut, would, without any further legislative direction, have rendered the towns of Ashland and Butternut liable to the plaintiff for the debt due him from La Pointe, the vacated town. This was expressly so held by the supreme court of the United States-in Mount Pleasant v. Beckwith, 100 U. S. 514. In that case the court say: “When a municipal corporation is legislated out of existence, and its territory annexed to other municipal corporations, the latter, unless the legislature otherwise provides, become entitled to all its property and immunities, and severally liable for a proportionate share of all its then subsisting legal debts, and vested with its powers to raise revenue wherewith to pay them by levying taxes upon the property transferred and the persons residing thereon.”

In the opinion in that case Justice Cliffobd says: “ Corporations of this kind are composed of all the inhabitants of the territory included within the political organization, each individual being entitled to participate in its proceedings;- but the powers of the organization may be modified or taken away, at the mere will of the legislature, according to its own views of public convenience, and without any necessity for the consent of those composing the body politic. Corporate rights and privileges are usually possessed by such municipalities; and it is equally true that thej' are subject to certain legal obligations which may be increased qr diminished at the pleasure of the legislature from which all these powers are derived.” Again, in speaking of the legislative power to alter, vacate, and change the boundaries of towns and other municipal corporations, he says: “ Old towns may be divided and new ones incorporated out of parts of the territory of those previously organized, and, in enacting such regulations, the legislature may apportion the common property and the common burdens, and may, as between the parties in interest, settle all the terms and conditions of the division of their territory or the alteration of the boundaries, as fixed by any prior law. . . . When one town is, by a legislative act, merged in two others, it would doubtless be competent for the legislature to regulate the rights, duties, and obligations of the two towns whose limits are thus enlarged; but if that is not done, then it must follow that the two towns succeed to all the public property and immunities of the extinguished town. . . . In such case, if no legislative 'arrangements are made, the effect of the annulment and annexation will be that the two enlarged corporations will be entitled to all the public property and immunities of the one that ceases to exist, and that they will become liable for all the legal debts contracted prior to the -time when' the annexation is carried into. operation.”

The doctrine of this case, that in the vacation of a town the legislature has the power to apportion the property, and charge the liabilities of the vacated town upon the town or towns to which the territory of the vacated town is annexed, in such manner and proportion as may seem just to the legislature, seems to be well established by authority. Thompson v. Abbott, 61 Mo. 176, 177; Borough of Dunmore's Appeal, 52 Pa. St. 374; Olney v. Harvey, 50 Ill. 453; Morgan v. Beloit, 7 Wall. 613, 617. The.general power of the legislature to apportion the property and the liabilities of a vacated town among the towns to which its territory is attached, is recqgnized by this court in the case of Town of Depere v. Town of Bellevue, 31 Wis. 120, 125; Goodhue v. Beloit, 21 Wis. 636; and La Pointe v. O’Malley, 47 Wis. 332; Butternut v. O'Malley, 50 Wis. 333. This court held, in La Pointe v. O'Malley, supra, that the county board of supervisors had all the powers of the legislature in regard to the vacation of towns and the annexation of the territory to other towns, and in such case could distribute the property of the vacated town to the towns to which the territory of the vacated town was attached, in such manner as the board deemed best for the public interest. ITad there been a debt due to the plaintiff, for his services performed in said action, from the town of La Pointe, when that town was vacated, we would have no difficulty in holding that, under section 9 of the ordinance which transferred the benefits of that litigation to the town of Ashland, there would have been a clear intention on the part of the board of. supervisors to charge such towu with the payment of such debt.

Does it alter the case because-the debt was not due? We are inclined to hold that it does not. The plaintiff had performed valuable services under his contract for the town of La Pointe. He had, in fact, procured the judgment of this court that his client was entitled to recover the $10,000, with the interest, from the town of Ashland; and the facts proved upon the trial of the action at bar show the right of the town of La Pointe to recover the $10,000 and interest. At this point the - legislative power steps in and annihilates his client, and, in effect, releases the town of Ashland from any further liability to his client for said $10,000; but the legislative authority recognizes the fact that the plaintiff has performed valuable services under his contract with his client which it wipes out of existence; and in the same act says, in substance, that the town of Ashland, which, by its legislation, is to be benefited, not only by receiving a part of the territory of plaintiff’s client, but also by being, relieved from its obligation to pay the $10,000 and interest, the subj’ect of the litigation in which his services have been performed, shall pay for such services. Had the ordinance simply said that the town of Ashland should pay the plaintiff for his services in said action, there can be no doubt as to the obligation on the part of the town of Ashland, especially after it had accepted those provisions of the ordinance favorable to itself. After the town of Ashland accepted the provisions made for its benefit, it became the successor of the town of La Pointe, for all the purposes of that litigation, and took the place of said town as a party to the contract between it and the plaintiff; and having refused to settle the claim of the plaintiff under his contract in the way designated in the ordinance, the plaintiff was at liberty to treat the town of Ashland as a substituted party in his contract made with the town of La Pointe, and, after the town of Ashland, as the successor of tbs town of La Pointe, had discontinued the action without his consent, to maintain his action to recover the stipulated sum of- $5,000 for his services.

The intent to charge the town of Ashland for the services of the plaintiff is clear. It is true that the ordinance directed that the amount of such service should be ascertained in a particular way. The plaintiff was willing they should be so ascertained, but the town refused to consent to their ascertainment in that way. By such refusal the plaintiff is remitted to his rights under his contract, and may recover-the stipulated '$5,000 for the breach by discontinuing the same without his consent. Justice and fair dealing require that the plaintiff should have pay for his services. The action of the county board has recognized that fact, and placed the liability for such payment upon the town of Ash-land, where, under all the circumstances, it clearly belongs.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for further proceedings.