Cole v. President & Trs. of Black River Falls

• Decision Date: 20 February 1883
• Citation: 57 Wis. 110,14 N.W. 906
• Court: Wisconsin Supreme Court
• Parties: COLE v. PRESIDENT & TRUSTEES OF THE VILLAGE OF BLACK RIVER FALLS.

57 Wis. 110

14 N.W. 906

COLE

v.PRESIDENT & TRUSTEES OF THE VILLAGE OF BLACK RIVER FALLS.

Supreme Court of Wisconsin.

Filed February 20, 1883.

Appeal from circuit court, Jackson county.

Carl C. Pope, for respondent, Henri B. Cole.

Johnson & Ainsworth and J. C. Gregory, for appellant, the President and Trustees of the Village of Black River Falls.

TAYLOR, J.

The plaintiff and respondent brought this action to recover damages of the appellants for an injury alleged to have been sustained by him on account of a defective sidewalk upon one of the public streets of said village. The appellant demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action against the defendant. The demurrer was overruled by the circuit court, and from the order overruling the demurrer the defendant appealed to this court. The learned counsel for the appellants insist that the demurrer should have been sustained, for the reason that there is, in fact, no such municipal corporation in this state as “The President and Trustees of the Village of Black River Falls.”

It may be a little difficult to understand how the defendant can be heard to allege that matter as a ground of demurrer, when the record shows that the defendant has appeared by that name in the action, and filed its demurrer to the complaint; but waiving the consideration of the apparent inconsistency upon the record, we will consider the questions raised on the argument by the learned counsel for the appellants.

It is said that there is no village of Black River Falls in this state, because chapter 191, P. & L. Laws 1871, which purports to amend chapter 49, P. & L. Laws 1866, entitled “An act to incorporate the village of Black River Falls,” is unconstitutional and void, It is admitted, and I think we should take judicial notice, that the village of Black River Falls has existed as a municipal corporation, in fact, ever since the year 1866. No objection is taken to the validity of chapter 49, P. & L. Laws 1866, and it is not disputed that the village was a properly-organized municipal corporation under said law until the enactment of chapter 191, P. & L. Laws 1871; but it is clamed that since that chapter was enacted the corporation has been wiped out de jure, at least, although it may have had an existence de facto down to the present time. This act of 1871 is either void entirely or it is void in part. The act purports to amend the law of 1866, and not to repeal it. If, then, the act of 1871 be a mere nullity, as violating the provisions of the constitution in regard to the election of officers of villages, it is as though it had never been enacted. The original charter of 1866 is unaffected by it, and the village continues a municipal corporation under that act. If the act of 1871 be void only as to those parts of it which provide for the election of village officers, and valid as to the remainder, then the act of 1866, so far as it relates to the election of officers for the village, remains in force and is unrepealed by the amendment of 1871. Shepardson v. Railroad Co. 6 Wis. 605;State v. La Crosse County Judge, 11 Wis. 50.

It is claimed that as the plaintiff alleges that the defendant is a corporation organized under the provisions of chapter 191, P. & L. Laws 1871, and has been so organized for more than 10 years last past, it must be presumed that the village is officered in the way prescribed by that act, and not in the manner prescribed by the original and valid charter. If this be admitted, it does not follow that there is not a village of Black River Falls in fact. By virtue of the act of 1866 the village was duly organized as a municipal corporation, and, as we may presume, acted under the organization prescribed by that act. So, if the entire act of 1871 be void, or only void as to the provisions prescribing how the officers shall be thereafter elected, we still have a valid law organizing the village, and declaring what officers shall exist under the charter, and directing how the officers to fill such offices shall be elected or appointed. And we also have the invalid and unconstitutional law of 1871, directing such offices to be filled in a way not sanctioned by the constitution. If we take it for granted that the offices of the village have been filled since 1871 in the way prescribed by chapter 191, P. & L. Laws 1871, still such officers are in office by color of law, and are therefore officers de facto if not de jure, and their acts are valid as to the public. If the offices exist de jure, then it is the settled doctrine of this court as well as of other courts that all persons who are in the exercise of the duties of such offices by color of law are officers de facto, and their acts are valid. And the fact that they are in by color of a law which is unconstitutional and void, does not make an exception to the rule. See Knowlton v. Williams, 5 Wis. 808; In re Boyle, 9 Wis. 264;Dean v. Gleason, 16 Wis. 6;State v. Bloom, 17 Wis, 52;Tolle v. Stone, 1 Pin. 230;Laver v. McGlachlin, 28 Wis. 364;Lask v. U. S. 1 Pin. 77;Sauerhering v. Iron Ridge & M. R. Co. 25 Wis. 447;State v. Bartlett, 35 Wis. 287;Sprague v. Brown, 40 Wis. 612.

Notwithstanding the objections taken to the amended charter of the village passed in 1871, we have an organized village of Black River Falls, and although it be admitted that all its officers were illegally elected and inducted into office, yet they are holding such offices by color of law, and are, therefore, de facto officers; and their titles to their respective offices cannot be questioned except in a direct proceeding to oust them from office. This view of the case disposes of all the questions raised by the learned counsel for the appellant, except the point made that because the complaint alleges that the village exists by virtue of chapter 191, P. & L. Laws 1871, it must stand or fall by that law, and he cannot be permitted to invoke the aid of the original charter to prove the existence of the defendant as a municipality. This objection can have little weight. The question to be determined is whether the defendant is an existing village in this state. There was no necessity for alleging that the village was organized under or by virtue of any particular act, and the allegation that it existed under an act which is void does not prevent the court from inquiring whether it does not in fact exist under some valid law of the state.

If the defendant had taken issue on that allegation, and...