Sauerhering v. Iron Ridge & Mayville Railroad

25 Wis. 447 | Wis. | 1870

Paiwe, J.

This suit was brought by the plaintiff, as a tax-payer of the town of Williamstown, in Dodge county, for the purpose of having certain bonds issued by the town,-in aid of the defendant railroad company, declared void and canceled. The complaint was demurred to, and the demurrer sustained, and judgment entered for the defendants; from which this appeal is taken.

The complaint contains a series of allegations designed to show the invalidity of the election of the acting officers of the railroad company. But it appears that they are at least officers de facto ; and the complaint alleges that the company is a corporation “ duly created by the laws of this state, and organized under an act of the legisla-, ture,” etc. This being so, a tax-payer of a town that has issued bonds for the stock of the railroad company, cannot, in this collateral way, raise any question as to the regularity or validity of the election of the officers of the company, for the purpose of preventing the bonds from being delivered to them.

The grounds of objection to the validity of the bonds consist of alleged irregularities, and neglect to comply with the requirements of the law authorizing them to be issued. The vote upon the subject was at a special meeting, and the law requires notice of such a meeting to be posted in “three of the most public places” in the town. It is alleged here that it “ was not posted at three of the most public places in said town, but only at one of such places.” But this cannot be construed as denying that the notices were posted in three public places. It was probably designed only to deny that the places where two of the notices were posted were as public as some others. But it is very questionable whether, in cases arising under such statutes, where it appears that the notices are posted in the proper number of public places, courts should go into any inquiry as to the comparative degrees of publicity between those places and others in the town, with a view to defeat the proceeding, if a preponderance of testimony should show that other places were more public. Statutory notices of elections are generally held to be directory. This court has held the same rule in respect to a special election to fill a vacancy. State v. Orvis, 20 Wis. 235. And although the same rule might not apply to the notice of a special town meeting, yet it would probably be held that the law intended to make the judgment of the officer, whose duty it was to post the notices, final as to the comparative publicity of different places in the town, in all cases where it appeared that he had acted fairly, according to his best judgment. And if this is the true rule, the pleading here is not sufficient to raise any objection to the validity of this special meeting.

The only other objection to the validity of the bonds, which deserves attention, grows out of the fact that a part of the preliminary proceedings required by chapter 165, Pr. & ■ L. Laws of 1869, under which they were issued, were. taken before that act was published. Within the decisions of this court, it was a public, and therefore a general, law, and not in force till published. And it appears that the resolution of the supervisors to subscribe to the stock, as required by section 6, was passed before the law was published, and the notice of the town meeting was also issued before such publication. The general law requires notices of special town meetings to state the purposes for which they are called. And consequently, when these ‘ notices were first issued and posted, the purpose of voting on the proposition to subscribe stock was, strictly speaking, not a legal purpose, inasmuch as the law authorizing it was not yet in force.

But the law was in force before the day of the meeting, and there is nothing in the complaint to show that the electors of the town had not full knowledge of the election, or that there was not a full and fair expression of their views in the ballots cast. The objection therefore, if good at all, is purely a technical one. And whatever effect it might have in a proceeding to enforce a tax title to real estate, in case of a sale for a tax voted at such a meeting, we think it is not of such a character as to justify the interposition of a court of equity to arrest the whole proceeding at the instance of a single taxpayer of the town. The principles acted on by this court in the case of Stokes v. Knarr, 11 Wis. 389, and in Ableman v. Roth, 12 Wis. 81, are applicable here. There should be some allegation impeaching the fairness and justice of the proceeding before a court of equity would so interpose.

By the Court. — The judgment is affirmed.