Sanford v. Prentice

28 Wis. 358 | Wis. | 1871

DixoN, C. J.

The only questions we shall consider in this case are as to the construction of section two of chapter 411, Private and Local Laws of 1866, and whether the power of the voters of the school district under that act was exhausted by reason of their having once taken proceedings in pursuance of it, which proceedings were subsequently abandoned. The whole act is as follows:

“ Section 1. The legal voters of joint school district No. 1, in the town of Sheboygan, town of Sheboygan Falls and village of Sheboygan Falls, Sheboygan county, are hereby authorized and empowered to levy and collect from the persons, corporations and property in said district liable to tax, such amount as may be necessary, not exceeding the sum of ten thousand dollars, for the purpose of erecting a school house or school houses in said district.

“ Section 2. A majority of the legal voters of said district may, at any legally called special or annual meeting of said voters, determine the amount of money so to be levied and collected, and the time of collecting said money, and, when so determined, said tax shall be collected in the same manner as other taxes are collected in said district.

“ Section 3. This act shall take effect from and after its passage and publication.”

The question upon the construction of section two is, whether tbe words “ a majority of tbe legal voters of said district,” as there used, mean a majority of all tbe persons in tbe district qualified to vote, or only a majority of those attending tbe meeting and actually casting their votes. A somewhat similar question came up in Gillespie v. Palmer, 20 Wis., 544, and tbe reasoning of this court in that case is in some respects applicable. Tbe question there was upon tbe meaning and application of tbe words “ a majority of all tbe votes cast at such election,” found in tbe proviso of section 1, art. III. of tbe constitution, for tbe extension of tbe right of suffrage. Tbe point was, whether tbe majority required was only of all tbe votes cast upon the subject of extending the right of suffrage, or whether it was a majority of all tbe votes cast at tbe election, regardless of tbe subjects upon which they were given, or including those given upon all other subjects. This court held to tbe former as tbe sound and true interpretation, and in so doing asserted, as a fundamental principle or rule in our form of government, that wherever a question is submitted to tbe decision or action of a majority of voters, tbe meaning is tbe decision or action of a majority of those persons qualified to vote and who do in fact vote upon tbe question or proposition submitted, unless some different intention is clearly expressed in the act or instrument providing for tbe submission, or plainly to be inferred therefrom. That principle is applicable to tbe question under consideration, and seems to furnish a sufficient test for determining tbe construction of tbe act. Here are no express words that the' majority of actual voters shall not decide; nor is there anything in tbe language from which such intention is properly to be inferred. Tbe primary and proper signification of tbe words “ legal voters ” is, persons qualified by law to vote and who do vote. There is a difference between an elector, or person legally qualified to vote, and a voter. In common parlance they may be used indiscriminately, but strictly speaking they are not tbe same. Tbe voter is tbe elector who votes — tbe elector in tbe éxercise of bis franchise or privilege of voting — and not be who does not vote. There would be no propriety in saying, in tbe sense of bis having voted, that an elector was a voter at a meeting or election which he did not attend. And that is not the application which the words of the act are to receive; but they must be understood according to their primary and proper sense of actual voters. If the legislature had intended a majority of the qualified electors of the district, they would undoubtedly have used those words instead of the words “legal voters,” or in some other way have made their intention plain.

As to the power of the voters having been exhausted by reason of the proceedings first taken and then abandoned, we perceive no reason for so holding. The authority conferred upon the voters is without limitation as to the time within which it shall be exercised, and there is no restriction upon the manner of exercising it, except that it shall be at some legally called special or annual meeting. The words are, “ at any legally called special or annual meeting.” If, therefore, the voters, having once determined to levy and collect the tax, saw fit afterwards to abandon the resolution or rescind it, no good reason is perceived for saying that the authority might not subsequently be exercised. A general power of this nature cannot be said to be exhausted until it has in fact been carried into execution.

These two questions, being resolved against the plaintiff, are decisive of the order appealed from. The other points presented by counsel are not considered- The motion to vacate the preliminary injunction should have been granted, and the order denying the same must be reversed, and the cause remanded for further proceedings according to law.

By the Court.— So ordered.