68 Wis. 546 | Wis. | 1887
The appellants insist that the circuit court erred in refusing to dissolve the temporary injunction — (1) because the complaint does not state facts which, if admitted to be true, would justify the court in granting the relief prayed for in the complaint, even if it were admitted that the electors of said town had no authority to vote a road tax upon the taxable property of said town exceeding the sum of $2,000; and (2) because the answers of the appellants show clearly that there was no intention on the part of the defendants to levy or collect a road tax in said town for the year 1886 in excess of the amount authorized by the laws of the state.
It seems to us that, unless we overrule the case of Judd v. Fox Lake, 28 Wis. 583, we must hold that the plaintiffs have not in their complaint stated facts sufficient to entitle them to equitable relief. In that case the complaint alleged that the electors of the town illegally voted to raise a tax of $500 upon the taxable property of the town for the pur
“ The case differs materially from all these. It is not the*551 case of an apparently valid contract entered into by the officers of the corporation, but which is in reality invalid by reason of some extrinsic defect; not one of the impending unauthorized execution and delivery by the officers of negotiable paper which, in the hands of a holder for value without notice, will become valid and obligatory against the corporation; and not one where any apparent lien has been created or cloud exists upon the title to real estate. It is, supposing the resolution of the voters in town meeting to have been unauthorized and the proposed tax illegal, at most a mere anticipated or threatened invasion of the legal rights of the plaintiffs, which as yet has ripened into nothing injurious or detrimental to them at all, and perchance may never do so, but which, if it ever should, would not in its nature be irreparable, but might be redressed by the ordinary processes known to courts of law and equity. Should the officers of the town attempt to carry the resolution into effect, and assess a tax wholly unauthorized and illegal, as the complaint charges, the plaintiffs will have their action at law to recover back the money if paid under protest or on levy or distress of personal property; and if the same be extended against the real' estate, they will also have their suit in equity to remove the supposed lien and cloud from their title. The complaint presents, therefore, the naked question, whether under such circumstances the aid of equity can be successfully invoked to declare in advance that certain acts of public officers, proposed or threatened in the future to be done, will, if performed, be illegal and void. We are clearly- of opinion that it cannot.”
I have quoted at length from the opinion in the case above cited, because it seems to dispose of one of the main questions arising in the case at bar.
The cases of Lawson v. Schnellen, 33 Wis. 288; Phillips v. Albany, 28 Wis. 340; Lynch v. E., L. F. & M. R. Co. 57 Wis. 430,—are all cases where the towns were about ille-
We are also of the opinion that the answer of the defendants shows that there had been no substantial violation of the law in voting $5,000 road taxes on the town. The laws in force regulating fhe assessment and collection of highway taxes in 1886 are subd. 9, sec. 776, and secs. 1239, 1240, R. S. 1878, as amended by ch. 163, Laws of 1883. By sec. 1240, as amended by ch. 163, Laws of 1883, the board of supervisors and the electors of the town had the power to
Griving a construction to these statutes most favorable to
Under the law requiring the highway taxes to be collected in money as other taxes are collected, it seems to us very clear that the duty of the supervisors as to making out warrants for the collection of such taxes is clearly abrogated ; and if any duty remains on them as a board in fixing the amount of taxes to be raised for that purpose in the town, it is simply their duty, in the absence of any vote of the electors on the subject, to declare the number of mills which shall be assessed on the valuation of the property of said town, and then the amount is to be cai’ried out by the clerk upon the general assessment roll, and collected with the other taxes. In the case at bar the electors have indicated that all the highway taxes in said town for the year shall be $5,000. That sum the electors had the power to vote, with or without the approval of the board of supervisors, as the law gives the electors the right to direct the supervisors to raise fifteen mills on the dollar valuation,
There is no equity, therefore, in staying the officers of the town in collecting a tax which the law clearly authorizes, even though some of the formalities of the law may not have been complied with. For anything appearing in this case the officers would have complied with the law literally had they not been enjoined.
By the Court.— The order of the circuit court is reversed, and the cause is remanded with directions to that court to dissolve the injunction.