McVichie v. Town of Knight

• Decision Date: 12 April 1892
• Citation: 51 N.W. 1094,82 Wis. 137
• Parties: MCVICHIE v. TOWN OF KNIGHT ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 137

51 N.W. 1094

MCVICHIE

v.TOWN OF KNIGHT ET AL.

Supreme Court of Wisconsin.

April 12, 1892.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action by Duncan McVichie against the town of Knight, J. G. Moore, William Dahl, and Frank Logan, as board of supervisors thereof, J. B. Anderson, clerk, and W. M. Adams, treasurer, to enjoin them from issuing and negotiating certain bonds. From an order overruling defendant's demurrer to the complaint they appeal. Affirmed.Ruggles & Curtis, ( Smith & Buell, of counsel,) for appellants.

T. H. Bushnell, for respondent.

ORTON, J.

This is an action by the plaintiff, and on behalf of all others alike interested as freeholders and taxpayers of the town of Knight, in the county of Ashland, to enjoin the supervisors of said town from issuing and negotiating the bonds of said town, said to have been voted to raise the sum of $6,000 for the purpose of building a town hall in said town; and to enjoin the town treasurer and town clerk from assessing a tax, or collecting the same, to pay said bonds, or the interest thereon, or any part thereof, based upon the following defective antecedent proceedings on the part of the town, alleged in the complaint: (1) It does not appear that the request required by section 776, subd. 10, Rev. St., to be delivered to the town clerk 20 days before the town meeting at which the vote to issue said bonds was to be taken, was made in writing, signed by at least 12 freeholders of said town. (2) The notice calling said town meeting was that the town meeting would be held at the several voting places of said town, when there was no more than one such voting place or precinct in said town, and the result was that 139 votes in favor of the proposition were cast in the first voting place or precinct, and none against it, and 322 votes were cast against said proposition in the second voting place or precinct, and none in favor of it; and the vote, according to the notice, was against the proposition by a large majority of the electors of the town. (3) The said notice of the town meeting was for more than 20 days, and was 21 days, when the statute (section 789, Rev. St.) requires the notice to be “not less than fifteen or more than 20 days.” (4) The notice was not signed by the clerk of the town, and has no official authority. (5) The notice was not posted up in three of the most public places in the town, as said section requires. The demurrer to the complaint, on the ground that it did not state a cause of action, was overruled, and the defendant appealed from said order.

To justify such a vote, and the issuing of said bonds, and the consequent taxation, the antecedent proceedings must be strictly according to the statute, and the jurisdiction of the town board to issue the bonds must appear on the records of the town; and no presumptions can be indulged in favor of the officers that they performed their duties. Ruhland v. Supervisors, 55 Wis. 664, 13 N. W. Rep. 877;State v. Graham, 60 Wis. 395, 19 N. W. Rep. 359;Attorney General v. City of Eau Claire, 37 Wis. 490.

1. It must therefore appear that such request...