62 Wis. 486 | Wis. | 1885
This suit is brought by the plaintiff town to recover from the defendant village within the same, moneys received for licenses for the sale of strong, spirituous, malt, ardent, and intoxicating liquors within the said village between May 7, 1883, and March 1, 1884, amounting in the
The amount of moneys received by said village for such licenses, and a demand thereof from the village and its treasurer by the plaintiff town, were proved. The plaintiff then offered a certified copy of a resolution of the village board adopted soon after said demand, appropriating said license moneys to certain village purposes, to wit: “For building and repairing sidewalks,- and for defraying the expenses of lighting street-lamps in said village, and for paying the salary of the village marshal, and for paying past indebtedness of said village.” Following this resolution on the certified record is a motion passed by the board to take legal counsel on the demand of the plaintiff for such license moneys. This certified record was objected to as not being the best evidence, and as incompetent and irrelevant. The copy of the resolution and motion was properly certified, and was clearly admissible under sec. 4148, R. S.
That case and the present one are very much alike. The board brought suit in that case to recover moneys belonging to the town withheld by its treasurer, and in this cáse the board brings suit against the village to recover moneys belonging to the town withheld by the village. The money in both cases is the property of the town, and it is made the duty of the board by that section to prosecute for its recovery. In the same case, on appeal from an order substituting the town of JButternut as plaintiff (50 Wis. 333), the question was directly raised that the town of Butternut had no authority ,to employ counsel to procure such substitution without a vote of the electors, according to subd. 2, sec. 176, R. S., and this court held that sec. 819, R. S., conferred such authority in the clearest terms by the authority to prosecute such an action. The two provisions — the one in subd. 2, sec. 776, and sec. 819 — might seem to be in conflict. The first empowers the qualified electors of the town “to direct the institution and defense of all actions in which the town is a party or interested, to employ all necessary agents and attorneys for the prosecution or defense of the same,” etc. The second provides that the town board “shall have charge of all actions in which the town is a party, see that all penalties and forfeitures for the benefit of the town, all breaches of official bonds to the damage of the town, and all injuries to the property of the town, are prosecuted for, and the damages and penalties and forfeitures collected and paid to the treasurer.” These two provisions can well stand together, when such independent action of the town board is confined to the subjects contemplated by the last section; and in respect to the institution, prosecution, or defense of all actions not within said section, the vote of the electors should be required by sec. 776. The enumeration of the
The learned counsel of the appellant cites the case of School District No. 8 v. Arnold, 21 Wis. 657. The statute considered in that case was the same as in subd. 15, sec. 430, R. S., giving the inhabitants of school districts, at annual meetings, the power “to give such direction and make such provision as may be necessary in relation to the prosecution or defense of any action or proceeding in which the district may be a party or interested.” In that action, brought by the board of directors of the school district without a vote of the inhabitants, a trespass upon the school-house was complained of, and it was urged that the board could not bring such an action without such authority, and the action was sustained on the ground that there was “an implied authority in such officer to bring ail suits, as, incident to his office, which the proper and faithful discharge of the duties of his office require.” The language giving power to the electors is very similar in the two cases; the difference, if any, being in favor of the power of the board of supervisors to bring such actions without a vote of the electors, in the fact that the statute does not directly authorize the board of directors to bring suits, and their right to do so is vested by their general powers as such officers. In the Eevised Statutes of 1849, sections 3 and 58 of chapter 12 are very similar
Ye think this case is within the principle of the above cases, and within the provisions of sec. 819. I have said this much on this question, not only because of an apparent conflict between the two statutory provisions, but because also of the decision of this court in State ex rel. Manitowoc v. County Clerk, 59 Wis. 15. In that case it was held that’ the town board had not the power to act as relator and sue out a writ of certiorari to review the proceedings of commissioners of equalization, without the authority of the electors under subd. 2 of sec. 776; and the reasons given for the decision are that the prosecution of the writ in such a case “ would involve consequences in the way of costs and expenses which might be greatly detrimental to the electors and tax-payers of the town, and the electors of the town are the parties interested in preventing the imposition of a charge against taxable property of the town through the action of the commissioners, and the action to review the acts of the commissioners should be either instituted by the tax-payers or some of them in. person.” These special reasons are sufficient to take the case out of the general rule which governs the other cases above cited and the present case where the right is absolute and relates to the moneys and property belonging to the town. We need only to say that the authority of the above case will not be extended beyond similar cases, and that the authority of this case will not be extended beyond such cases as are similar in principle.
The granting of the nonsuit on the ground that the village is not liable in the action,' and that the only remedy of the town is by mandamus against the village treasurer, was most clearly erroneous. It was error also to reject the certified copy of the resolution and motion of the village board, by which the fund was misappropriated by the village; and the objection that the supervisors of the town could not bring this action without the authority of a vote of the electors of said town, was not well taken, and cannot be made available on this appeal to support the judgment of nonsuit.
By the Court. — The judgment of the county court is reversed, and the cause remanded for a new trial.