159 Wis. 437 | Wis. | 1915
1. The right of the plaintiffs to maintain the action is challenged on the ground that they are not residents of the town of Winter. Not being residents of the town, it is argued, they are not members of the corporation and have no standing in court to question its acts. The following Wisconsin cases are cited to show that such actions have always been brought by resident taxpayers: Peck v. School Dist. 21 Wis. 516; Whiting v. S. & F. du L. R. Co. 25 Wis. 167; Judd v. Fox Lake, 28 Wis. 583; Lynch v. E., L. F. & M. R. Co. 57 Wis. 430, 15 N. W. 743, 825; Willard v. Comstock, 58 Wis. 565, 17 N. W. 401; Frederick v. Douglas Co. 96 Wis. 411, 71 N. W. 798; Webster v. Douglas Co. 102 Wis. 181, 77 N. W. 885, 78 N. W. 451; Jenkins v. Bradley, 104 Wis. 541, 80 N. W. 1025; Mueller v. Eau Claire Co. 108 Wis. 304, 84 N. W. 430; Carpenter v. Christianson, 120 Wis. 558, 98 N. W. 517; Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603; Harley v. Lindemann, 129 Wis. 514, 109 N. W. 570; Wilcox v. Porth, 154 Wis. 422, 143 N. W. 165. And extracts from opinions therein showing that emphasis is laid upon the fact that plaintiffs are resident taxpayers and therefore damaged by any misuse of corporate funds are quoted in aid of the contention that none but resident taxpayers can maintain the action. Counsel for plaintiffs claim this objection was first raised by a demurrer ore terms, and cite a number of cases to show that it must be taken by special demurrer or answer. Counsel are mistaken in saying the objection arose upon a demurrer ore ienus. The answer alleges that “none of the plaintiffs in this action are residents of the town of Winter, nor have their office in
2. The objection that the plaintiffs have an adequate remedy at law by paying the tax under protest and suing for its recovery, or by an equitable action to remove the cloud upon the title of their property created by the illegal tax, is not grounded upon a substantial basis. This case is well adapted for illustrating the fallacy of the claim. If the payment of the orders is not enjoined they will be paid out of the taxpayers’ money. If plaintiffs recovered their share of the illegal tax or three fourths, a deficit to ‘that extent would be created which would have to be levied upon the taxable property of the town and the plaintiffs would have to pay three fourths of such deficit, so in the end they would have to pay nine sixteenths of the illegal tax even if they recovered theiy first payment. Taxpayers are-entitled to complete immunity from an illegal tax where they seasonably bring their action. The result in case of an action to remove a cloud upon the title of their property would likewise be only a partial remedy. If they refused to pay the tax and succeeded in having their property escape the first tax levied against it, a similar deficit would occur which would have to be made up by a tax levied upon all the taxable property of the town. Only by en
3. The proof shows not merely a threatened injury to taxpayers, but a partially consummated one. As to many of the acts complained of, it was consummated as to everything except the payment of the outstanding orders. - The alleged illegal tax was levied. Contracts were let in contemplation of the collection of the tax levy and work was done thereunder. Substantially the same state of facts appeared in McGowan v. Paul, 141 Wis. 388, 123 N. W. 253. Such a record presents more than a mere contemplated or threatened injury and shows an existing equitable cause of action, because nothing short of an injunction restraining the payment of the alleged illegal orders will prevent irreparable injury.
The state census has been abolished. The federal census is taken once every ten years. Hence a very good reason existed why the legislature did not make the federal census the test of ¡oopulation. If it had, many raioidly growing towns in the northern part of the state might have to wait nearly ten years after they actually had a population of 500 or more before they could exercise the rights granted by the statute.
5. The present case presents perhaps as strong grounds for holding plaintiffs estopped from questioning the validity of the acts of the town relative to-the construction of the waterworks system as can well be imagined. The United States census showed the toAvn to have a population of 516 in 1910. The next year the electors voted to avail themselves of the power granted to towns having a population of 500 or more. It also voted to levy $6,000 for a waterworks system. Plaintiffs paid their share of such tax, or three fourths thereof, without question or protest. The next year a further levy of $5,000 was made and such tax was likewise paid by plaintiffs without demur. Not until after the final levy of $3,000 for waterworks was made at the annual town meeting in April, 1913, did the plaintiffs raise any objection to the power of the town to make the levy. Certainly if estoppel can apply to ultra vires acts of a town it ought to apply here. The equity of the application of the doctrine of estoppel is
6. The court declared void a number of orders not issued to or held by any of the defendants in the case. In this it committed error. The payees or holders thereof are entitled to their day in court upon the question of their validity. The case of Giblin v. North Wis. L. Co. 131 Wis. 261, 270, 111 N. W. 499, is relied upon to sustain this part of the judg
7. Such reversal in no wise affects the validity of the judgment declaring void the orders held by the defendants in the action. They have had as full and adequate an opportunity to show the validity of their orders as they would have had if the holders of all the orders had been in court. They have in no wise been prejudiced by a failure to bring them all in nor is the judgment against them different than it would have been upon the same evidence with all the holders of orders made parties to the action. As to each holder the controversy was a separable one and the action might proceed to judgment against them all or against a part only.
8. Two orders of $200 each were issued to one Crawford and an order for $138.85 and one for $330 were issued to one Ilollen, drawn on the road fund for services performed by them in building roads in the town of Winter. The trial court found:
“That all of said work was performed on premises where no legal highway was laid out and where the town board of*450 said town had taken some proceedings' to lay out a highway but had failed to make, sign, or record any order laying out the same, and that said premises were never used for highway purposes,'except that order number 1043 for $138.85 was for labor performed and expenses incurred at a place where no highway was attempted to be laid out, but said ITollen performed some services upon private property by mistake as to the true location of the line; that none of said orders represent any valid indebtedness of said town or any services or expenses for which the town received any benefit, and that said orders are all void.”
The correctness of this finding is challenged by the defendants, as well as the conclusion that the orders are void because work was performed upon roads not legally laid out. It is also urged that plaintiffs have been guilty of such laches in bringing the suit as to prevent them from questioning the validity of the expenditure. We have examined the evidence relating to the attempted laying out of the highway and are satisfied that it sustains the finding made. A portion of the finding is based upon somewhat conflicting evidence, but the material parts thereof are sustained by the town records themselves and by uncontradicted evidence. It was held in Beyer v. Crandon, 98 Wis. 306, 73 N. W. 771, that a contract with a town for work upon a highway having no legal existence is illegal. This holding was based upon the ground that a contract by town officers in excess of their power is void, and cannot be validated even by performance on the part of the contractor. It was there said:
“If it be true that town officers can contract with a person for work for their town without any authority so to do, under such circumstances that such person is chargeable with knowledge of such want of authority, and he can yet perform the contract and then recover of the corporation on the ground that it has received the benefit of his labor, a very easy road to the creation of indebtedness against towns exists, whereby taxpayers can be burdened with ruinous taxation without any adequate means of redress; but such is not the law.” Pages 310, 311.
Neither can the defense of laches prevail. The Hollen contract was let June 16th and the Oraivford contract June 23 d and the work presumably done later. This action was begun the following September. Under the circumstances plaintiffs must be deemed to have acted with reasonable promptness.
9. An order for $200 was issued to Mont Wiley, one of the supervisors of the town, for the loss of a horse which fell into a trench dug for the waterworks system in or near an alley in the village of Winter. Wiley had made a claim for $175 for the loss of the horse. The records of the town clerk show that at the noon hour of the annual town meeting of April 1, 1913, the electors voted to allow the claim in the sum of $200. The trial court found that the claim did not represent any valid indebtedness of the town; that there existed no such claim or indebtedness or disputed controversy upon any material question which would empower the electors of the town to authorize the payment of the claim. The finding is sustained by the evidence. Conceding that the resolution was regularly passed and actually voted upon during a time when the electors were lawfully transacting business, still the record shows upon its face that the - order was void because based upon an allowance of $200 for a claim of only $175. Electors cannot give away the money of the taxpayers. The court correctly held the order void. •
10. An order for $11.25, another for $11.43, and another for $44.61 were issued to the defendant Nutting, who was
“Any officer, agent or clerk of . . . any . . . town, . . . or in the employment thereof, . . . who shall have, reserve or acquire any pecuniary interest, directly or indirectly, present or prospective, absolute or conditional, in any way or manner, in any purchase or sale of any personal or real property or thing in action, or in any contract, proposal or bid in relation to the same, . . . shall be punished by imprisonment in the county jail not more than five years or by fine not exceeding five hundred dollars.”
The sale of plank to the- town by Nutting, who was the treasurer thereof, came directly within the statutory condemnation. The argument that the statute was intended to apply only to sales made by persons other than officers or agents is not well founded. The language applies equally well to a sale made directly by an officer to the town, and the mischief sought to be prevented is as great in such a case as it would be where the sale was made by some third party in which the officer had an interest. In the latter case it would usually be a partial interest. In the former the whole interest of the vendor is in the officer selling. The statute was undoubtedly framed for the purpose of putting beyond the reach of officers any temptation to sell supplies to towns or municipalities of which they are officers or agents. It cut off all sales between them and the municipality they represented, so that they should not act both as seller and buyer. It also prohibited their acquiring an interest in the sales of others to the municipality. That contracts made in contravention of the statute quoted or similar statutes are absolutely void was settled in Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964, and in Quayle v. Bayfield Co. 114 Wis. 108, 89 N. W. 892.
12. A number of poor persons were either wholly or in part supported by the town. There is evidence to the effect that the proprietor of a store called the Winter Emporium was informed by the supervisors of the town that certain persons would be aided by the town to the extent of $15 per month. More than this was furnished them and the bills were afterwards audited and allowed. The evidence, is not very clear that the town board fixed any definite sum beyond which aid would not be furnished. But assuming it did, the matter of the amount to be furnished was discretionary with them. They could have allowed a larger amount in the first instance. A larger amount was furnished. They could ratify what they might have done originally. There is no showing that more than what was reasonably necessary was
• IS. A number of claims passed upon by the town board were inadequately itemized or verified. The court permitted these claims to be refiled properly itemized and verified. Plaintiffs objected and' took exceptions to the court’s ruling. Such exceptions are urged in favor of the judgment, but they cannot avail plaintiffs anything. The coiirt properly allowed the claims to be corrected in the respects mentioned, or perfect claims to be substituted for imperfect ones.
14. An order for $15 for the rent of a house for the months of March, April, and May occupied by a Mrs. Buckner, who received aid from the town, was issued'to the owner of the house. It appears that most of the rent accrued before Mrs. Buckner became a town charge and no understanding or agreement was shown to the effect that the town should in any way become liable for the rent. The order was properly declared void. A town has no authority to pay the debts of poor persons. It is chargeable with the duty of presently caring for and aiding them when in need, but it has no power to pay their past debts or debts not lawfully incurred on the credit of the town.
15. Claim is made that the court improperly cut down the bills of the supervisors for per diem services and livery hire. We have examined the evidence relative thereto and from such examination have reached the conclusion that the court’s findings as to those matters must stand. The same result is reached as to the claim of Van Alstine for damages to a
16. The order to the Winter Emporium for furnishing oil for lighting the streets of the village of Winter was properly declared void. The town had no authority to expend money for lighting streets and the purchase was wholly ultra vires.
17. The court awarded costs against all the defendants except the town of ’Winter. The awarding of costs is a matter resting in the sound discretion of the trial court. We cannot say there was any abuse of discretion in the instant case.' A reading of the evidence discloses a lamentable looseness in the administration of the affairs of the town of Winter, and in many cases an apparent disregard of the rights of the taxpayers and the obligations placed upon the supervisors by law. Many irregularities were corrected by the trial court in this case, not involved in the appeal. These were correctly taken into account in determining the question of costs.
By the Court. — The judgment is affirmed except (1) that part thereof which adjiidges void orders issued to payees or holders not parties to the action; (2) that part thereof adjudging void a portion of the orders issued to Ordway; and (3) that part thereof adjudging void a portion of orders Nos. 964, 1040, 1127,, and 1128 issued to the Winter Emporium for supplies furnished poor persons. As to the excepted portions the judgment is reversed, and the cause is remanded with directions to enter judgment in accordance with this opinion. No costs are allowed upon the appeal. The appellants will pay the clerk’s fees.