Gilkey v. Town of How

• Decision Date: 15 December 1899
• Citation: 105 Wis. 41,81 N.W. 120
• Parties: GILKEY v. TOWN OF HOW ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 41

81 N.W. 120

GILKEY

v.TOWN OF HOW ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Appeal from circuit court, Door county; Samuel D. Hastings, Jr., Judge.

Action on town order by H. W. Gilkey against the towns of How and Armstrong. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed.Wigman & Martin, for appellants.

Webster & Classon, for respondent.

CASSODAY, C. J.

This is an appeal from an order overruling a demurrer to the complaint, alleging, in effect, that the defendants, the towns of How and Armstrong, had for more than two years been duly organized and existing as towns in Oconto county; that November 28, 1894, the county board of supervisors of that county adopted an ordinance whereby certain sections of lands described were detached and set off from the town of Armstrong, and a government township of land, described, was detached and set off from the town of How, and all of such territory so detached from such towns, respectively, was by such ordinance erected and created into a new town, called the town of Waupee; that, after the passage and publication of that ordinance, the people of such town of Waupee proceeded to elect the town board and other town officers, and to levy taxes to supply the different funds of that town, as provided by law, and the town board so elected by the people duly issued town orders to carry on the business of that town; that the plaintiff was and is the owner and holder of town orders issued by such town of Waupee during its existence to the amount of $308.88, which orders have never been paid, nor any part thereof; that January 17, 1896, the circuit court, in a proceeding brought for that purpose, set aside the organization of the town of Waupee, and held the ordinance creating such town to be null and void, and dissolved the organization of such town; that thereafter the town of How resumed ownership, possession, and control of the territory so detached from it, and that the valuation of such territory was $52,080, by the assessment of 1895, and the town of Armstrong resumed possession, ownership, and control of the territory so detached from it, and that the valuation of such territory was, by the assessment of 1895, $36,265; that the valuation of all the territory contained in the town of Waupee during its existence was, by the assessment roll of 1895, $88,445; that, by reason of the facts alleged, the town of Armstrong became indebted to the plaintiff on such orders in the sum of $181.89, as its proportionate share thereof, and that the town of How became indebted to the plaintiff on such orders in the sum of $126.99, as its proportionate share thereof; that March 14, 1898, the plaintiff duly filed with the town clerks of the towns of Armstrong and How, to be brought before the town board of audit of each of such towns at its meeting in the spring of that year, his claim or demand for the amount due from each of such towns, and for the amount due from both of such towns jointly as above set forth, which claim was verified by the affidavit of the plaintiff, but that such claim or demand was not acted upon by the town board of audit of such towns, or either of them, or by the electors at the annual meeting of such towns for 1898, or, if acted upon, was not allowed by the board of audit, or by the electors of such town meeting, and that such sum has not been paid by such town or towns, or any part thereof; that more than 10 days had elapsed between the annual town meeting of the towns in 1898 and the commencement of this action; and prayed judgment against the defendants for $308.87, together with interest thereon and his costs and disbursements herein, and that the court might specify by its judgment the amount each of such towns should pay.

The only question presented by the demurrer is whether the complaint states facts sufficient to constitute a cause of action. The statutes authorized the county board of supervisors of Oconto county to divide, set off, organize, vacate, and change the boundaries of towns in that county in the manner therein prescribed. Sections 670, 671, Rev. St. Counsel for the defendants contend, in effect, that such statutes are mandatory; and that, since the complaint fails to allege that every requirement of such statutes was substantially complied with, the county board got no jurisdiction, and hence that the adoption, passage, and publication of the ordinance, the organization of the new town, the election of a town board and other town officers, the levy of taxes, and the issuing of the town orders in question, as alleged, were each and all null and void, the same as though no attempt had ever been made to create such new town. In reaching such conclusion, counsel seem to rely upon Smith v. Sherry, 50 Wis. 210, 6 N. W. 561;Id., 54 Wis. 114, 11 N. W. 465. That was an action of trespass to lands, and the removal of pine timber therefrom, brought by a tax-title claimant under a tax deed based upon a sale for the nonpayment of taxes assessed upon the land, in 1872, by the town of Seneca. Upon the first trial of that action the defense tendered was that, prior to such assessment, the lands described in the tax deed had been detached from the town of Seneca, and attached to the village of Shawano, by chapter 92, Priv. & Loc. Laws, 1872; and that the taxes for that year had been assessed and levied thereon by that village, and paid to that village, and hence that the plaintiff's tax deed was void; and the trial court so found; but under a stipulation of the parties, and at the request of that court, the defendant refrained from going into his whole defense until this court should determine the constitutionality of chapter 92, mentioned. Thereupon this court reversed the judgment, and held that act to be unconstitutional, as special legislation, and hence that the lands were never attached to the village of Shawano. 50 Wis. 210, 6 N. W. 561. The cause, having been remanded, was retried, in accordance with the stipulation, and the defense relied upon was to the effect that the land described in the tax deed never became a part of the town of Seneca, but was at the time such taxes were assessed a part of the town of Herman; that the only attempt to attach the same to the town of Seneca was by an unpublished order of the county board, passed March 29, 1872, on motion of a member of the board, that the town embracing the lands described in the tax deed “be attached to the town of Seneca for town purposes”; and, as a further defense, that the defendant was in the actual possession of each of the 40's covered by the tax deed, so as to stop the running of the statutes of limitations in favor of the plaintiff, and bar his claim of title. The trial court held in favor of the defendant on both defenses, and this court affirmed the judgment. 54 Wis. 114, 11 N. W. 465. It was there held, in effect, that such mere order of the county board, passed on motion, but never published, did not give the town of Seneca authority, nor color of authority, to put the taxing power of the town in motion. It will be observed that in that case the attempt was to detach territory from one de jure town, and attach the same to another de jure town, on simple motion, entered in the minutes of the board in the form of an order, and never published; and it was, in effect,...