Foster v. Rowe

• Decision Date: 30 April 1907
• Parties: FOSTER v. ROWE ET AL.
• Court: Wisconsin Supreme Court

132 Wis. 268

111 N.W. 688

FOSTER

v.ROWE ET AL.^a1

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by N. C. Foster against William Rowe, impleaded, etc. Judgment for defendants, and plaintiff appeals. Affirmed.

For former report, see 107 N. W. 635, 128 Wis. 326.

This action is brought by the plaintiff as a taxpayer of the village of Fairchild, Eau Claire county, on behalf of himself and all other taxpayers similarly situated, to restrain the village authorities from spreading on the village tax roll the tax in question, which had been authorized by the commissioners of equalization under sections 1077a and 1077b, St. 1898. The village authorities defaulted in the case, and the defendant Rowe, a taxpayer of the city of Eau Claire, was allowed to defend. He demurred to the complaint upon the grounds: (1) That the court had no jurisdiction of the subject of the action; (2) that plaintiff had no legal capacity to sue in his behalf and in behalf of all others similarly situated; (3) that there was a defect of parties, in that the village was a necessary party plaintiff; and (4) that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and on appeal from such order to this court the order was affirmed. The case is reported in 128 Wis. 326, 107 N. W. 635, where a complete statement of the complaint is given, which need not be repeated here. After remittitur of the case upon the decision thus made, the case was submitted to the trial court upon the same complaint, and no evidence was offered. The court awarded judgment dismissing the complaint and for costs against plaintiff. This is an appeal from such judgment.W. H. Frawley and H. B. Walmsley, for appellant.

Wickham & Farr, for respondent.

SIEBECKER, J. (after stating the facts).

The former opinion sustaining the demurrer passed specifically on the question of the constitutionality of the law authorizing the appointment of commissioners and prescribing their duties and power to review county assessments made by the county boards. It is stated in the opinion “that the proceedings of the board, if conducted in good faith and within its jurisdiction, are final and conclusive, and the question to be considered is whether the allegations of the complaint show such a disregard of duty as to render its acts contrary to law and void,” and that whoever attacks the proceedings of the commissioners “must show affirmatively want of jurisdiction.” Upon examination of the complaint, it was held that it did not state facts sufficient to constitute a cause of action. The plaintiff now contends that, in view of the fact that federal questions are involved in the determination of the plaintiff's rights, this court was not, under the circumstances, one of last resort, and therefore the former adjudication by this court upon the questions involved is not conclusive on this appeal, and does not come under the rule that such former decision establishes the law of the case. We find no support for this contention in any of the authorities cited to our attention. Whether plaintiff has alleged facts sufficient to constitute a cause of action, and entitling him under the laws of this state to the equitable relief demanded, is one on which the decision of this court is final, and its decision becomes the law of the case. Within this principle, every question determined on the former appeal is therefore binding on this...