66 Wis. 534 | Wis. | 1886
It is conceded that tbe village was organized April 12, 1819, under ch. 40, R. S., and other laws amendatory thereof; that it was situated in the plaintiff town in the county of Dodge; that the county system of supporting the poor was never adopted in that county; that as the law stood prior to April 1, 1885, the town was entitled to all license moneys collected in the village, as the village had not then provided for the support of the poor therein within the meaning of sec. 1562, R. S., as amended by sec. 1, ch. 156, Laws of 1883. Green Co. v. Monroe, 55 Wis. 179, 180; Fox Lake v. Fox Lake, 62 Wis. 491-493.
The defendant village, having been organized under ch. 40, R. S., only had such powers as were given by that chapter and its several amendments. By sec. 892, R. S., of that chapter, as it originally stood, the “village board” had “power, by ordinance, resolution, by-law, or vote,” to do the several things therein specifically enumerated; but no-Avhere among them is found the right to “provide for the support of the poor therein.” By sec. 3, ch. 314, Laws of 1885, that section was “amended by adding thereto, as an additional subdivision, the following, viz.: (28) To regulate, by ordinance, the manner of caring and providing for the support of the poor of the village.” That amendment was published and went into effect April 11, 1885, and thereupon became a part of the charter of said village. In pursuance of the power thus granted, the village board, on May 9, 1885, duly made and passed an ordinance which, in effect, enacted that the village should “relieve and support all poor and indigent persons lawfully settled therein whenever they” should “stand in need thereof;” that “the trustees ” of the village should “ have the care of all poor persons in their village so long as they ” should “ remain a village charge.” That they should see that they were “properly relieved and taken care of in the manner required ” therein; that the village should “ relieve, take care
The ordinance was not published until May 15, 1885, and it is claimed that, as $400 of the license moneys was received by the village before such publication, it belonged to the town in any event. Sec. 891, E. S., provides that “ all ordinances and by-laws shall be signed by the president, and counter-signed by the clerk, and if any penalty or forfeiture is thereby, in any event, imposed, shall, before taking effect, be published,” etc. Counsel contend that because the statute (sec. 4549, E. S.) punished any neglect of the duty imposed upon the village officers by the ordinance, that, therefore, a penalty or forfeiture was imposed by the ordinance, and hence that it did not go into effect until published. But such punishment is clearly imposed by the statute, and not by the ordinance. It is only where the ordinance itself imposes the penalty or forfeiture that publication is necessary. The ordinance in question was not of that kind. It merely imposed new obligations upon the village, and, as compensation therefor, gave to it such license moneys as it might thereafter receive for the purposes prescribed by law. As indicated, the enactment of the ordinance was authorized by statute. The statute declares that “all authorized ordinances and by-laws shall have the force of law, and remain in force until repealed.” Sec. 891, E. S. The ordinance in question had therefore “ the force of law,” and bound the trustees of the village to care for and support the indigent poor therein, the same as town supervisors are required to care for and support the indigent poor in their respective towns. It follows that,
The cause of action alleged in the complaint was to recover moneys received by the defendant for the use and benefit of the plaintiff, and hence must be treated as an action upon an implied contract. Fox Lake v. Fox Lake, supra. This is none the less so because such liability, had it existed, would have been created by statute. The mere fact that the proof failed to establish the allegations of the complaint, did not change the nature of the action nor increase the amount of costs which might be recovered by the successful party. The statute is imperative, and provides “that, in actions at law, on contract, the costs, exclusive of disbursements, shall not in any one case exceed $25; . . . and, if the defendant be entitled to recover costs therein, he shall recover the same eosts as the plaintiff would have been entitled to recover if the demand of his complaint had been established.” Sec. 2921, E,. S. Here the itemized attorney’s fees amounted in the aggregate to $54.30. This included $29.30 more than the defendant was entitled to.
By the Court.' — The judgment of the circuit court is affirmed upon the merits, and reversed as to the costs, and the cause is remanded for further proceedings according to law, but without costs in this court as to either party, except that the appellant must pay the fees of the clerk.