Maxcy v. City of Oshkosh
Decision Date | 06 December 1910 |
Parties | MAXCY v. CITY OF OSHKOSH ET AL. |
Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.
Action by Warren G. Maxcy against the City of Oshkosh and others. From a judgment of dismissal, plaintiff appeals. Affirmed.
On December 31, 1907, Helen A. Beach, a resident of the city of Oshkosh, died leaving a will, which was thereafter duly admitted to probate. The twentieth paragraph of such will reads as follows:
After paying the debts and specific legacies provided for in the will, the residue of the estate to be devoted to the purposes provided for in the twentieth paragraph of the will amounts to between $130,000 and $135,000. The common council of the city of Oshkosh passed a resolution accepting the gift and the terms under which it was made, and issued and sold its bonds to the amount of $50,000 to provide the necessary funds to make the gift available to the city. The plaintiff brings this action as a taxpayer, in his own behalf as well as in behalf of taxpayers generally, to restrain the city of Oshkosh from issuing or selling bonds to make up the fund of $50,000 provided for in the will of Mrs. Beach, and also to restrain the city from using the proceeds of any bonds that might be sold for any such purpose. Application was made to the court for a preliminary injunction restraining the defendant from selling or negotiating the bonds until the suit was finally determined. The court denied relief by way of a preliminary injunction. The case was tried on its merits, and judgment was rendered in favor of the defendants, dismissing the complaint. From such judgment and from the order refusing a temporary injunction, the plaintiff appeals.
C. D. Jackson, J. C. Thompson, A. E. Thompson, and E. M. Smart, for appellant.
Fred Beglinger, George Hilton, and Charles Barber, for respondents.
BARNES, J. (after stating the facts as above).
The questions presented on this appeal are numerous and important, and some of them are fraught with difficulties. The briefs filed with us contain over 550 pages of printed matter. Two days were consumed on the argument, and on a reargument of the case which was ordered, and, if the court is not sufficiently informed to reach a correct conclusion, it is not the fault of the counsel in the case, who, from their respective standpoints, have displayed commendable diligence and learning in presenting to the court the facts and the law involved. The appellant contends that the judgment and order appealed from should be reversed on the following grounds: (1) The will created a charitable trust and must be construed with reference to the duties, obligations, and liabilities surrounding such trust and imposed on the trustees thereof, and the city could not act as trustee of the trust attempted to be created. (2) The will did not contemplate the erection of such a school building and the maintenance of such a school as the city of Oshkosh was authorized by law to build or maintain, and therefore the taxpayers could not be compelled to contribute any part of the fund provided by the will. (3) The city of Oshkosh had no power to...
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