Pape v. Town of Carlton

130 Wis. 123 | Wis. | 1906

Marshall, J.

From the statement it will be seen that the case turned in the court below on whether under sec. 2, ch. 83, Laws of 1899, authorizing the purchase by towns of road machines, the petition spoken of is to be signed by a majority ■of the taxpayers of the road district, or districts, representing a majority of the taxable property therein according to the last previous assessment roll of the town prior to the date of the paper, the decision being in the affirmative. The language of such section, so far as necessary to be considered, is as follows:

“The chairman of the town hoard thereof may, upon being .petitioned in writing by a majority of the taxpayers of one <or more superintendent districts of such town, representing more than one half of the taxable property in such district •or in each of such districts (to be ascertained from the last preceding assessment roll, and certified to as such by the town clerk of such town) and by the superintendent or superintendents of highways of each such district, contract,” ■etc.

The arguments of counsel have been very helpful in reaching a satisfactory conclusion here, in that they probably brought to our attention all of the decisions of this court which from any standpoint could reasonably be said to affect the matter. Each feature of such arguments and of tho learned discussion contained in the opinion of the circuit judge has been carefully studied. However, it is thought best not to treat such features here in all their details, but rather to give such attention to the authorities cited as to show generally the bearing they seem to have upon the precise point which appears to be vital on the appeal, and to confine the opinion otherwise, in the main, to the question involving such point as an original proposition, viz.: Under the statute quoted, are the signers of the petition to be regarded as petitioning the chairman of the town board for the purchase of a road machine, only as of the date of the paper ■signed by them, or are they to be regarded as petitioning such chairman at the time the paper is certified to by the town ■cleric and presented to such chairman? That involves this: Is it sufficient to render one a competent petitioner under the statute that he is a taxpayer of the road district when the petition is certified by tbe town clerk and so presented ? Appellant stands for tbe affirmative, and if be is right tbe petition in question should have been tested by the assessment roll of 1900 instead of that of 1899, if tbe former existed, within tbe meaning of tbe law, at tbe time tbe town clerk made bis certificate.

We have little difficulty in passing successfully tbe contingency last suggested. It is considered that when an assessment roll shall have been corrected by tbe assessor and delivered to tbe town clerk under sec. 1064, Stats. 1898, which is required thereby to occur on or before tbe first Monday in August of tbe year it is made, it is an assessment roll within tbe meaning of ch. 83, Laws of 1899, notwithstanding it is still subject to correction as to mistakes under sec; 1065. Tbe prior section speaks of tbe roll, when ready to be filed in tbe town clerk’s office, as a completed roll, and so it is to all intents and purposes. In our view, if tbe chairman of a town is thereafter petitioned under said cb. 83 tbe sufficiency of tbe request, as to putting him in motion to obligate tbe town for tbe pttrchase of a road machine, is to be tested by such roll unless another shall in tbe meantime have been made. There is no authority cited to our attention, or which we can discover, throwing any light on this question. It must be disposed of as an original matter according to our best judgment.

We cannot agree that tbe allegations of tbe complaint as to* tbe chairman of tbe defendant town having been petitioned on tbe 14th_day of June, 1900, cut any controlling figure in tbe case, either standing alone or in connection with tbe date of tbe petition, even if we assume, for tbe purposes of tbe point, that tbe act of signing as to each petitioner relates to-such date. Tbe undisputed evidence is that tbe petition was-not presented to tbe chairman of tbe town board till August 25, 1900. Therefore, if that be tbe time when, in contemplation of law, he was “petitioned,” then the decision should be accordingly, regardless of the mere conclusion pleaded that he was “petitioned” on June 14, 1900.

In the opinion of the circuit court we observe that considerable reliance was placed on Siegel v. Liberty, 118 Wis. 599, 95 N. W. 402. We are unable to give the effect'to that case which the learned court attributed thereto. The point here at issue was not there discussed or decided. The case did not disclose, as we can discover, when the petition was signed or presented to the chairman of the town. It showed when the contract was made; that it was in December, 1899, and that the sufficiency of the petition was tested by the assessment roll of 1898. However, it does not necessarily follow because the contract was made after the assessment roll of 1899 was filed with the town clerk that the chairman of the town board was not “petitioned” to make the contract prior to the filing of such roll. In the printed case used upon the appeal it appears that the plaintiff alleged that the petition was not presented to the chairman till after the 3d day of Eovember, 1899. That was put in issue by the answer and found in the defendant’s favor. The printed evidence, as we read it, does not show the date of the petition or when it was signed or when it was presented to the town chairman. Certainly the question of whether the act of “petitioning” is referable to the date of the paper or to that of its presentation to the chairman of the town was not raised or discussed or referred to in any way, so far as we can discover.

Some reliance is placed on State ex rel. Spring Lake v. Pierce Co. 71 Wis. 321, 37 N. W. 231, and State ex rel. El Paso v. Pierce Co. 71 Wis. 327, 37 N. W. 233. Those cases arose under the law of 1885, authorizing county aid to towns in the building of bridges. The law provided for such aid in case of a town having voted to construct or repair any bridge or bridges wholly or partly within such town and provided for one half the cost of such construction or repairs and such cost exceeding one fourth of one per cent, of the taxable property in the town “according to the last equalized valuation.” The defendant, in the last case mentioned, at its annual town meeting in April, 1886, determined upon the building of a bridge and otherwise provided as indicated in the law of 1885, and after the equalized valuation of the taxable proq>erty of the town for that year was made, the county board was called upon to appropriate out of the county treasury sufficient money to defray one half the cost of the improvement. It was held that the last equalized valuation of the property of the town, existing at the time it acted on the bridge matter at its annual town meeting, was to be taken as the test of whether the county possessed authority to extend the aid requested, as the law contemplated that the right of the town thereto should become fixed upon its taking action as required by such law. We are unable to see how that decision points the way to a correct conclusion as to the question we have here. The obvious purpose of the law of 1885 is that the action of the town, satisfying the condition precedent to the obligation of the county, is to be taken with-reference to an existing equalized valuation of taxable property in the former, and, therefore, necessarily the action of the county must be taken with reference to the same valuation.

State ex rel. C., M. & St. P. R. Co. v. Blackstone, 63 Wis. 362, 24 N. W. 72, which dealt with the law authorizing municipal aid in the construction of railroads, is referred to by respondent’s counsel as suggesting that the qualification of a petitioner under such a law is to be determined as of the time of his signing the petition. We do not so understand that decision. The statute authorizes the acceptance by a municipality of a proposition of a railroad company for the construction of a railroad upon a petition bearing the signatures of a- majority of the male persons residing therein who were assessed for taxes as shown by the last assessment roll. It provides for a day certain when the petition may be first presented to any such resident taxpayer for his signature. The court beld, confessedly by a somewhat arbitrary construction, that the law contemplates only signatures of taxpayers residing in tbe municipality on such day; that neither the elate of the petition, the time of signing it, nor that of its presentation is material on the subject of residence; that one cannot qualify by moving into the town between the time when it is first competent to present the petition for signatures and the time for filing it with the town clexkj nor disqualify by moving out during such period. The court was persuaded to adopt that construction because of a seeming necessity that the law should provide a time certain by which to test the competency of all petitioners as to residence. The law under consideration here does not make residence in the road district an essential to qualification of a petitioner. The only requisite is that at the time the chairman of the town board is “petitioned” the petitioner shall be a taxpayer therein, as appears by the last previous assessment roll. It has two features as to which certainty should be looked for: First, the time when the chairman is to be regarded as “petitioned” within the meaning of the act; second, the status of the sign-ers of the petition as to their being taxpayers at that time as appears by the last previous assessment roll of the town.

La Londe v. Barron Co. 80 Wis. 380, 49 N. W. 960, and State ex rel. Hawley v. Polk Co. 88 Wis. 355, 60 N. W. 266, are cited to our attention by appellant’s counsel as bearing on the question at issue. They dealt with the statute requiring .a county board of a county to submit to the voters thereof the question of changing the location of the county seat upon a petition being presented to such board requesting it, signed by a specified proportion of such voters according to the poll lists of the last previous general election in the county. The point decided was that a person who signs such a petition may withdraw therefrom at any time before final action by the board. The question of whether a petitioner’s qualification can be tested by a poll list made after he signs the paper and before presentation of it to tbe county board was in nowise involved. True, tbe effect of tbe decision is that so long as a person’s name remains signed to sucb a petition be is to be regarded as in tbe attitude of requesting tbe submission, but tbe vital question bere as to whether qualification to sign can be referred to any circumstance occurring after tbe signing was not touched upon, and perhaps could not arise, as in this case, because of statutory differences.

Crogster v. Bayfield Co. 99 Wis. 1, 74 N. W. 635, 77 N. W. 167, where tbe court rejected a view of the law as to municipal aid in tbe construction of a railroad, which would enable assessors after acceptance by tbe municipality of a railroad company’s proposition on tbe subject, by tbe manner of' assessing property, to render tbe bonds to be issued pursuant to sucb acceptance good or bad, is cited to our attention. There tbe constitutional provision limiting municipal indebtedness was involved. Tbe particular question presented was-this: At what stage in proceedings under tbe act do municipal-aid bonds in tbe construction of a railroad become indebtedness within tbe meaning of sec. 3, art. XI, of tbe constitution prohibiting municipalities from becoming indebted in excess of “five per centum of tbe value of tbe taxable property therein, to be ascertained by tbe last assessment for state- and county taxes previous to tbe incurring of sucb indebtedness ?” Tbe answer was, at tbe time of tbe accex>tance of tbe proposition of tbe railroad company, not at tbe time of performance of the contract on its part by constructing tbe road. It was with reference to tbe effect of bolding tbe latter date tbe proper time, leaving tbe capacity of tbe municipality to-become indebted open and subject to manipulation by tbe assessors during tbe period of construction — in effect giving-tbe assessors power to invalidate tbe obligations of tbe municipality, — that tbe court, spealring by tbe present chief justice, spoke of tbe danger of sucb a system and of tbe importance to tbe parties to sucb a contract of their being able to--ascertain with certainty, at the time of entering into the contract, the exact extent of municipal competency to incur indebtedness, regardless of any future act of its officers. If that has any bearing on this case it is quite remote and confined to the mere principle that laws of this character should be certain as to material features and that ambiguities should ■be solved with a view of rendering them so.

We have now referred to the decisions of this court, in the main, which are discussed in the opinion of the trial court •and the briefs of counsel. It is considered that they do not involve the precise question presented here nor throw any satisfactory light upon it, though it must be conceded, as indicated at the outset, that the trial court and counsel succeeded in bringing together the cases which most nearly approach such point. It seems that we must solve the issue as to the law of 1899 by looking at the words thereof in the light of ordinary rules for statutory construction. If there be any precedents fairly in point no one seems to have been able to discover them. We confess that we have not, and although the learned circuit court disposed of the case after much careful study, and counsel upon both sides have devoted commendable industry in endeavoring to aid us, they have not. So far as the authorities go they indicate a strong judicial leaning towards that construction of laws authorizing municipal indebtedness which will make the desire of taxpayers whose property presently will, constructively at least, be in■cumbered thereby, the ruling factor.

It is conceded that the law in question is am.bign.ous. The •ambiguity grows out of uncertainty as to whether in an application to the chairman of a town board to purchase a road machine the date of his being “petitioned” in the matter is that of the signed paper or that, of the presentation thereof to him certified by the town clerk. The words “representing more than one half of the taxable property in such district or in each of such districts (to be ascertained from the last preceding assessment roll),” etc., refer obviously to the words preceding, “the chairman of the town Board . . . upon being petitioned ” etc. When uncertainty is removed as to the date when the chairman is “petitioned,” within the meaning of the statute, uncertainty as to the assessment roll by which the sufficiency of the petition should be tested will likewise be removed.

There is no more familiar and helpful rule for judicial construction of a statute than the one ordinarily phrased substantially thus: When the meaning of a law, viewed in its literal sense or when applied to the object thereof, is uncertain, the legislative idea is to be determined by looking at the whole thereof, to the subject matter with which it deals, to its effects and consequences and to its reason and spirit, and if thereby the real legislative purpose can be discovered with reasonable certainty, and the same can be fairly said to be expressed within the scope of the language used, even by giving a most liberal construction thereto, such purpose must be regarded as written therein as efficiently as if it were so written in words taken in their plain ordinary meaning. Ogden v. Glidden, 9 Wis. 46; Clark v. Janesville, 10 Wis. 136; Blunt v. Walker, 11 Wis. 334; Harrington v. Smith, 28 Wis. 43; State ex rel. Sturgeon Bay & L. M. S. C. & H. Co. v. Comm'rs, 34 Wis. 162; State ex rel. Heiden v. Ryan, 99 Wis. 123, 127, 74 N. W. 544; Rice v. Ashland Co. 108 Wis. 189, 192, 84 N. W. 189.

It seems quite clear that the dominant purpose of the law of 1899 was to clothe the majority of the taxpayers of a road district, representing a’ majority of the taxable property thereof, with capacity to determine whether such road district should be burdened with the cost of a road machine and to make their wishes known at the time, as near as practicable, of the chairman of the town board being authorized to act in the matter. It contemplates that the chairman shall act with reference to the attitude of such taxpayers substantially at the time the obligation to pay for the road machine is incurred, and so it provides that the sufficiency of the result shall be tested by the last preceding assessment roll, the test to be made by the town clerk having the roll.in charge.

If the time when the chairman is “petitioned” in any case be referable to the date of the writing the effect might be that the names signed thereto would constitute but a small minority of the taxpayers and taxable property in the district, or districts, at the time of the chairman being called upon to incur the obligation, and yet be sufficient, tested by the last previous assessment roll, to find which one might be required to go back one or two years. If the time of “petitioning” be so referable and such date is a few weeks prior to the filing of an assessment roll but presented thereafter for certification, why would it not be so referable if the making of two or more assessment rolls had intervened, so that, though testing the writing by the last one with reference to such date it would be sufficient, it would not be fairly representative, at all, of the attitude of taxpayers at the time the chairman of the town board is required to act in the matter ? We are unable to assign any good reason why, if the date of the petition governs in case of the completion of one assessment roll between such date and the presentation of the paper for certification, it does not govern in all cases, regardless of the number of assessment rolls filed with such clerk between such date and the time of such certification. Is there any escape from the probable effect suggested of .so construing the law as to give such significance to the date of the petition as that attributed thereto by the judgment complained of? Is not such effect quite inconsistent with the manifest object of the law?

Viewing the matter in hand as above, we are constrained to hold that the legislature could not have intended to express an idea that would necessarily lead to the unreasonable result indicated. One of tlie cardinal rules for judicial construction is that a meaning which would lead, if adopted, to absurd consequences is to be rejected if any other can be discovered expressed within the reasonable meaning of the language of the act. State ex rel. Heiden v. Ryan, 99 Wis. 123, 128, 74 N. W. 544. So far may courts go to avoid attributing to the legislature an intent to enact an obviously absurd law that the literal sense of the words of the enactment, even when there is no uncertainty of expression* may be ignored and a meaning adopted reasonably within the scope of the language used, which will give a sensible effect to the work of the lawmakers. Rupiper v. Calloway, 105 Wis. 4, 80 N. W. 916.

Applying the foregoing here it seems that the language, “the chairman of the town board . . . may, upon being petitioned,” etc., reasonably points to the time of the certification of the petition for presentation to the chairman, and we are constrained to hold that such was the legislative purpose. To so construe the enactment renders certain the time when the attitude of the taxpayers respecting the purchase of a road machine for a road district, or districts, -must be made known to the chairman of the town board and makes that time the one best calculated to inform him of their wishes when he is called upon to act in the matter. The all-important question under the law would seem to be, What are the wishes, in prcesenti, having reference to the time it is sought to burden the district, or districts, with the cost of a road machine, of a majority of the taxpayers thereof representing a majority of the taxable property therein? That according to legislative wisdom is referable to the last previous assessment roll — in this case the assessment roll of 1900. Such construction of the law accords a reasonable meaning to ali its parts and gives it the certainty said in State ex rel. C., M. & St. P. R. Co. v. Blackstone, 63 Wis. 362, 24 N. W. 72, to be so important as to warrant the court in adopting a quite arbitrary construction, if required, to attain it. We do not find it necessary to go that far here. 'The result is seemingly reached by a natural, logical course ■of reasoning. W e must, therefore, differ with the trial court, while commending it for the careful study of the subject evidenced by the record, in the endeavor to reach a correct con■clusion.

Error is assigned because the court refused to allow the complaint to be amended by adding thereto a cause of action to recover on the fourth instalment in the note, which matured after the commencement of the action. That presents the question of whether an entirely new cause of action arising ‘pendente lite can be brought in, in an action at law linder the Code, by amendment. It appears that this court decided in the negative in Shinners v. Brill, 38 Wis. 648. The court, speaking by Ryan, C. J., said:

“It would be outside of the doctrine of amendment, and ■& violation of all principle and precedent, to permit a plaintiff to amend his complaint by setting up a new and distinct ■cause of action accruing puis darrein continuance.”

By the Court. — The judgment is reversed, and the cause remanded with directions to render judgment upon the verdict in favor of the plaintiff.