70 Wis. 122 | Wis. | 1887
This is an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of • action. The complaint, omitting the title of the case, reads as follows:
It alleges that the defendant is a corporation, being a duly organized town existing under and by virtue of the laws of the state,- having the township system of school government therein, and had on the date hereinafter mentioned.
That the defendant is indebted to the plaintiff herein upon the following described order:
“$100. School ORDER BTo. 154.
“ Glidden, Wis., July 26, 1886.
“ To the Town Treasurer of the Town of Jacobs: Pay to G. W. Geraghty, or bearer, the sum of one hundred dollars, , out of any moneys in the school fund not otherwise appropriated, being for teaching.
[Signed] “Q. W. Klein", President.
[Countersigned] “ Geo. Bell, Sec’y.”
- That said order was duly presented for payment to the town treasurer of said town, defendant, more than thirty days prior to the commencement of this . action, September
On the argument in this court the learned counsel for the respondent moved that the appeal be dismissed, for the reason that the appellant town had not given any undertaking on appeal as required by the statute. To this motion the appellant answers that under the provisions of sec. 3062, R. S., the town may appeal without giving any undertaking, unless ordered to give one by this court. This section reads as follows: “ When the state, or any state officer, or state board, in a purely official capacity, or any municipal corporation within the state, shall take an appeal, service of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from, and no undertaking need be given. But the supreme court may, on motion, require security to be given in such form and manner as it shall in its discretion prescribe, as a condition of the further prosecution of the appeal.” It is insisted by the counsel for the respondent that a town is not a “municipal corporation” within the mean-ingof this section, and he cites Norton v. Peck, 3 Wis. 714, and Eaton v. Manitowoc Co. 44 Wis. 489, to sustain his contention. The first case construed the meaning of the words as used in our constitution, and the second case their meaning in sec. 1, ck. 112, Laws of 1867. This section limits the time within which a deed can be issued upon a
It seems to us that when the object of the section above quoted is considered, the town comes within the relief intended to be given as fully as the county, city, or village, and it should have the benefit of the relief. All the taxable property of the town is made liable for the payment of any judgment recovered against it, the same as the city and village, and it ought to be entitled to like privileges in its liti-gations. In common parlance, and even in legislative and judicial language, the word “municipality” is applied to towns as well as to cities and incorporated villages. See 1 Dill. Mun. Corp. (3d ed.), §§19-21, and cases cited. We think towns are within the meaning of the law above cited, and they may appeal without giving an undertaking in the first instance. If there be any good reason for requiring an undertaking in order to stay proceedings in the action in which the appeal is taken, relief can be obtained in this court. The appeal was properly taken.
Does the complaint set up a cause of action against the town? We are very clear that it does not. If it were to be admitted that a town within which the township school system prevails is liable in an action for the refusal of the
The statute further 'provides that the town board of directors shall make an estimate of the amount necessary for the support of the schools during the ensuing year, specifying the sum needed for the following purposes: (1) Teach
It will be seen from an examination of these provisions, and others in the statute providing for the maintenance and government of schools in towns in which the township system of schools has been established, that the town government has no control whatever of the subject of such
If any action can be maintained upon an order of the town board of directors, which has been issued for the payment of teachers’ wages or for any other legitimate expenditures of the board, when no money has been provided by the board for its payment, and there are no moneys in the hands of the town treasurer derived from other sources applicable to such payment, and it is very clear there is no fault on the part of the town that it is not paid, such action cannot be maintained against the town. The order of the board may be evidence of an indebtedness incurred by the board of school directors of the town to the party in whose favor the order is drawn, but it certainly furnishes no evidence that the town is in any way indebted to such person.. If an action can be maintained against the town upon an order of the school board, there would seem to be just as. good reason to hold that the town would be liable upon any other contract made by the board with a teacher or ■with any other person in relation to any matter concerning which the statute authorizes the board to contract.
It is clear that, the statute having declared the town board of directors a body corporate, with the usual powers of a corporation for public purposes, and declared that such corporation may sue and be sued in the corporate name, and that it may contract and be contracted with, all actions to enforce the contracts of such corporation must be brought against such corporation; and in the absence of some statute which in express terms gives the right to maintain an action for such enforcement against the town, within which such corporation has its existence, no such action can be maintained. The fact that the taxable property of the town may be the ultimate fund from which the money to pay the demand must be raised, is not a sufficient reason for saying that it is immaterial whether the action be brought against the board or the town. The town officers know nothing of the transaction out of which the cause of action arises, and are wholly unprepared to defend it. The officers of the corporation which incurred the supposed debt are supposed to know all about it, and are the party ■who should be called upon to defend the action. They know whether there is any defense to the order or not, and are the only parties who can properly make an answer to the plaintiff’s claim. It is not, therefore, a matter of indifference as to whether the town or the board be made the defendant in the action.
By the Court.-— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.