224 Wis. 34 | Wis. | 1937
So many of the facts alleged in the complaint as are necessary to an understanding of this controversy will be summarized. The plaintiff now is, and for more than twenty years has been, a cemetery association, duly organized under the laws of this state. During all that time it has owned and maintained a cemetery located within the boundaries of the defendant city. The defendant is a duly organized municipal corporation, located in Milwaukee county. Prior to December 30, 1930, the defendant was a city of the fourth class, but on that date it became a city of the third class. For many years prior to June 1, 1920, and ever since that date, the plaintiff has received frorii the owners of cemetery lots various sums of money, to insure the perpetual care of their lots. Out of the moneys so received, various sums were deposited with the treasurer of the defendant city pursuant to the provisions of secs. 1455/ and 1455k of the Wisconsin statutes, 1898, and acts amendatory thereof. On June 1, 1920, such deposits amounted to $1,057.40. On the first day of each June thereafter, up to and including June 1, 1934, the plaintiff deposited with the defendant’s treasurer other sums of money received by it for the perpetual care of lots and graves in its cemetery. On the first day of each June, during the years 1921 to 1933, inclusive, the treasurer of the defendant city paid to the plaintiff interest at the rate of four per cent per annum on the total of all sums so deposited, except that on June 1, 1933, the said treasurer paid to the plaintiff the sum of $493.98, which was just $100 less than it should have been, had the interest been correctly computed at four per cent per annum on the funds so deposited. A schedule covering the period, June 1, 1920, to June 1, 1934, set forth in the complaint, shows the total sums deposited with the city
During all of the times mentioned in the complaint, the legislature, by enactments deemed appropriate by it, has sought to promote and foster perpetual care of cemetery lots
The law was further amended by ch. 227, Laws of 1927, but in no way materially affecting this controversy. In 1929, the law was again amended but the following language was retained:
“. . . Or it [perpetual care money] may be deposited with the treasurer of the municipality nearest such cemetery, and such municipality shall pay said association annually interest on sums so deposited of not less than four per cent per an-num.” Chs. 65 and 196, Laws of 1929.
In 1931, the law was again amended but without changing the right of a cemetery association to deposit moneys with the municipality or the duty of the municipality to pay in
“Money received by an association for perpetual care shall be invested as provided in section 231.32, or in such other manner as may be approved by the county judge of the county "or adjoining counties wherein the cemetery is located, or it may be deposited with the treasurer of the county'in which such cemetery is located, and such county shall pay said association annually interest on sums so deposited of not less than three per cent per annum.”
During all the times subsequent to the enactment of ch. 448, Laws of 1923, and up to the time when ch. 134, Laws of 1933, went into effect, the law did not expressly permit the deposit to be made with the treasurer of the county. The statute was again amended by ch. 259, Laws of 1935, amending the prior law as follows :
“. . . Or it may be deposited with the treasurer of the county or city in which such cemetery is located, and such county or city if it accepts such deposits shall pay said association annually interest on sums so deposited of not less than three per cent per annum.”
At all times subsequent to the enactment of ch. 60, Laws of 1911, the law in substance provided that it should not be in force or effective in counties having a population of one hundred fifty thousand or more except as to cemeteries wholly within fourth-class cities. Ch. 134, Laws of 1933, substituted for the words “one hundred fifty thousand or more” the words “one hundred thousand or more.” The law, therefore, was by its terms applicable to the plaintiff, whose cemetery was wholly within the city of Wauwatosa, a city of the fourth class up to December 30, 1930, when it became a city of the third class.
It appears from the allegations of the complaint that on June 1, 1931, and on each June first thereafter, up to and
It is contended by the defendant city, (1) that the law which provided in substance that it should not be in force in counties having a population of one hundred fifty thousand or upwards except as to cemeteries wholly within fourth-class cities offends sec. 23, art. IV, and sec. 3, art. XI, of the constitution of this state, and (2) that, regardless of the constitutionality of the act, the city was not in any event legally bound to accept deposits from the plaintiff, or to pay interest on the amount deposited subsequent to the time it became a city of th'e third class. In our view, there is no present need to decide whether the several statutes assailed are constitutional since, regardless of that question, it is our opinion that the allegations of the complaint, taken as true, show that the defendant is liable to the plaintiff. For many years prior to 1931, the defendant city had accepted and paid interest to the plaintiff each year at the rate of four per cent. Commencing in 1931, the defendant continued to accept deposits each year up to June 1,1934, inclusive, without objection and continued to pay interest at four per cent .per annum up to June 1, 1933, inclusive, except as to the $100 not paid as the result of an error in computing the interest. Had the defendant, upon becoming a city of the third class, notified the plaintiff that it would no longer continue to act as trustee of the funds deposited with it, or had it taken steps to terminate the trust, this controversy would not have arisen. The city, however, retained the fund, accepted further deposits and continued to pay interest just as it had done for many years. It seems clear that if the city desired to terminate the trust it was its
Without unduly prolonging this opinion, we reach the following conclusions:
(1) That the sums of money which were paid to the plaintiff for perpetual care of cemetery lots and which were deposited with the defendant city were trust funds whether in the custody of the plaintiff or the defendant; (2) that independently of a statute authorizing a city to act as trustee of perpetual-care funds, the public interest to be subserved by the perpetual care of lots and graves in a cemetery located within its boundaries and in which burial privileges are available to the general public or to some substantial part thereof, is sufficient to render it proper, in the absence of express prohibition by the legislature, for a city to act as trustee of perpetual-care funds intrusted to it by such cemeteries; (3) that since the defendant, after becoming a city of the third class, continued for four years to accept deposits made by the plaintiff as it had theretofore done for many years and continued to pay interest as it had likewise done for many years, without intimating to the plaintiff that the old arrangement had ceased, it thereby continued the arrangement until August 7t, 1934, when the defendant resolved to turn the trust moneys over to the plaintiff and to terminate the trust; (4) that the
By the Court. — Order affirmed.