Burnham v. City of Milwaukee

• Decision Date: 10 December 1897
• Citation: 98 Wis. 128,73 N.W. 1018
• Parties: BURNHAM v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

98 Wis. 128

73 N.W. 1018

BURNHAM

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Bill by John F. Burnham against the city of Milwaukee and others for an injunction.From a decree for plaintiff, defendants appeal.Affirmed.

Newman and Pinney, JJ., dissenting.Howard Van Wyck and E. V. Bruncken, for appellants.

Tuntin & Glicksman, for respondent.

WINSLOW, J.

This is an action in equity brought by a citizen and taxpayer of the city of Milwaukee to restrain the city from issuing $120,000 worth of corporate bonds for the purpose of building and equipping a garbage reducing plant, under the provisions of chapter 288 of the Laws of 1897, as amended bychapter 380 of the Laws of 1897.It will be unnecessary to state the pleadings, as the questions on which the case turns can be briefly stated.The plaintiff's principal claims were: (1) That the city had already exceeded its constitutional limit of indebtedness; and (2) that the act authorizing the issue of the bonds was special legislation, and hence unconstitutional, under the provisions of subdivision 9, § 31, art. 4, Const., which prohibits the passage of any special law for “incorporating any city, town or village or to amend the charter thereof.”Upon motion of the plaintiff, judgment perpetually enjoining the city from issuing the bonds was rendered upon the complaint and answer, and the city appeals.

1.Does the corporate indebtedness already exceed 5 per cent. of its taxable property?The answer to this question depends upon the proper legal construction of certain contracts for the purchase of lands for public parks entered into by the city during the years 1890 and 1891, under the provisions of section 13, c. 488,Laws 1889, andsection 8, c. 179,Laws 1891.There are 15 of these park contracts.The city is in possession of the lands named in these contracts, and is improving the same.There have already been paid large sums of money upon the contracts, and there yet remain to be paid more than $600,000, before the entire purchase price of the lands will be paid.If this amount is an indebtedness of the city, then its constitutional limit of indebtedness (Const. art. 11, § 3) has already been exceeded; otherwise not.Both of the laws under which these purchases of park lands were made grant the city power to purchase lands upon credit, and then provide that “for that purpose the proper officers of said city may execute and deliver to the vendor of such land or property purchased an instrument creating a lien thereon for such purchase money without creating corporate liabilities therefor to secure the whole or any part of the price in installments,” etc.Laws 1889, c. 488, § 13, andLaws 1891, c. 179, § 8.Certain of these very contracts were before this court for construction in the cases of Perrigo v. City of Milwaukee, 92 Wis. 236, 65 N. W. 1025, andCity of Milwaukee v. Milwaukee Co., 95 Wis. 424, 69 N. W. 819, and the substance of the contracts will be found stated in those cases.In the first of these cases the question was whether such a contract, in the hands of the vendor of the land, was personal property, so as to be subject to taxation, or, in other words, whether it was a debt due or to become due, or an effect; and it was said by the present Chief Justice in the opinion: “Does this optional agreement held by the city create a debt against the city and in favor of the Perrigos?Certainly not, since, as indicated, it expressly provides that the city shall not thereby be made liable in any manner or form.* * * But the Perrigos are not creditors having a right to an indebtedness against the city which they can enforce by action or otherwise.The further payment by the city of any portion of the purchase price or interest or taxes is entirely optional with the city.”Thus it appears to have been distinctly held in that case, after full argument, that the installments to come due in the future upon such contracts were not debts due from the city to the vendors, but that it was optional with the city whether it would pay them or not.The question arose again, in a somewhat different form, in the subsequent case of City of Milwaukee v. Milwaukee Co., supra.Part of this property, at least, was outside of the city limits, and the question arose whether it was exempt from taxation by the county because it was owned by the city.In this case it was held that the legal title to the land was in the vendors, and that the city simply had an option to purchase the same, with the right of possession until default, and that the city was not bound to pay the purchase money; thus distinguishing the case from that of a vendee in possession of lands under a contract binding him to pay the purchase money.Thus it will be seen that the very question whether the future installments coming due upon these contracts constituted debts or obligations on the part of the city arose distinctly in each of these cases, and was in each case distinctly decided adversely to the plaintiff's contention.

It was very ably contended on behalf of the plaintiff upon the argument that the question arises differently now, and that the decisions in those earlier cases are not necessarily controlling in this case; that in those cases the question was one of construction of the laws regulating taxation, while now the question concerns the interpretation of an important clause of the constitution.It is said that these contracts constitute simply a scheme on the part of the parties to evade the constitutional limitation upon municipal indebtedness, and that such a scheme should not be allowed to succeed; that even if there be no “debt” created by these contracts, in the ordinary signification of the term, still there is such an inchoate obligation that manifestly the city, from mere prudential reasons, will feel bound to make the payments in order to save the property; and thus that the very abuse which the constitution aims to prevent is successfully perpetrated.We are not unmindful of the weight and persuasiveness of these considerations.Probably there is little chance for a difference of opinion as to the policy of such legislation or of such contracts as those before us; but we cannot twist nor enlarge language in a statute, or even in the constitution, which has a definite and certain legal meaning, even to accomplish laudable results.There is no doubt of the meaning of the word “debt” as used in the law.It means “something owed”; “money due or to become due upon express or implied agreement.”1 Bouv.Law Dict. tit. “Debt.”It denotes, not only an obligation of the debtor to pay, but the right of the creditor to receive and enforce payment.Board of Com'rs v. Harrell(Ind. Sup.)46 N. E. 124.Under the constitution as well as under the law of taxation, the question is, is the city indebted?Is it under obligation to pay to some one the balance of the purchase price of these lands?It will not do to say that it will probably make the payments, or that it would be...