| Wis. | Oct 15, 1901
The cases have been so numerous in this court during recent years sustaining the taxpayer’s right in equity to maintain an action to prevent the making or carrying out of illegal and unauthorized contracts by municipal corporations involving the increase of taxation or the unlawful expenditure of public funds, or both, that it seems unnecessary to do more than to refer to the proposition. Webster v. Douglas Co. 102 Wis. 181" court="Wis." date_filed="1899-02-21" href="https://app.midpage.ai/document/webster-v-douglas-county-8186177?utm_source=webapp" opinion_id="8186177">102 Wis. 181.
The question presented here is whether the complaint, fairly construed, presents such a case. We think it does. The complaint sufficiently shows that the plaintiff is a property owner and taxpayer in a road district of the defendant town; that a contract has been made for the purchase of a road machine for.his road district, involving the expenditure of $225, to be raised by taxation of the plaintiff’s district together with another-district; and that said contract was made without the petition required by law to be filed before the making of such a contract.
But it is said that in making the contract in question the chairman of the town board did not act for the town, but acted simply in a governmental capacity as a public officer
The act which authorizes the purchase of road machines to be owned and used by road districts is ch. 83, Laws of 1899. This act provides, in substance, that in towns where the road taxes are paid in labor the chairman of the town board may, upon a written petition signed by more than one half of the taxpayers representing more than one half of the taxable property in any road district or districts and by the superintendents of the district or districts, purchase a road machine or scraper on credit or otherwise, to be used and owned by the district or districts petitioning therefor, which shall be paid for out of the highway tax of such district or districts; that a copy of the co'ntract shall be filed with the town clerk; and that the amount thereof shall be audited by the town board of audit, and paid by direct tax levied by the town board on the district or districts, as other town charges are levied and collected.
Under these provisions there can be no doubt but that the contract made by the chairman is, in legal effect, the contract of the town in its corporate capacity, and that the liability incurred is a liability of the town, the funds with which, it is to be discharged being obtained, however, by a tax levied upon that portion of the town which is to enjoy the beneficial use of the machine. The contract must have two parties who are bound by it. Evidently the chairman is not personally bound, and the road district is not a corporate body. It seems, therefore, certain that the town in its corporate capacity and the vendor of the machine are the parties to the contract, and, if so, are necessarily the proper parties in an action to set the same aside.
These considerations demonstrate that the defendants are
It seems extremely doubtful, to say the least, whether any cause of action is stated to authorize the enjoining of the collection of the tax, because it is nowhere alleged that the same has been placed upon the tax roll, or that any attempt has been made to collect it. However, as a good cause of action is stated to set aside the illegal contract, the complaint was not subject to demurrer, even though greater relief was demanded than the plaintiff can obtain.
By the Court.— Order reversed, and action remanded with directions to overrule the demurrer to the complaint.