Miller v. Town of Jacobs

• Decision Date: 22 November 1887
• Citation: 35 N.W. 324,70 Wis. 122
• Parties: MILLER v. TOWN OF JACOBS.
• Court: Wisconsin Supreme Court

70 Wis. 122

35 N.W. 324

MILLER

v.TOWN OF JACOBS.

Supreme Court of Wisconsin.

November 22, 1887.

Appeal from circuit court, Price county.

J. B. Hagarty, for respondent.

Lamoreux & Gleason, for appellant.

TAYLOR, J.

This is an appeal from an order overruling a demurrer to the complaint of the plaintiff, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint, omitting the title of the case, reads as follows: It alleges that the defendant is a corporation, being a duly-organized town existing under and by virtue of the laws of the state, having the township system of school government therein, and had on the date hereinafter mentioned. That the defendant is indebted to the plaintiff herein upon the following-described order:

+-----------------------------+
                ¦“$100.¦SCHOOL ORDER No. 154. ¦
                +-----------------------------+
                

GLIDDEN, WIS., July 26, 1886.

To the Town Treasurer of the Town of Jacobs: Pay to G. W. Geraghty, or bearer, the sum of one hundred dollars, out of moneys in the school fund not otherwise appropriated, being for teaching.

+--------------------------------+
                ¦[Signed]¦C. W. KLEIN, President.¦
                +--------------------------------+
                

[Countersigned] GEO. BELL, Sec'y.”

--That said order was duly presented for payment to the town treasurer of said town, defendant, more than 30 days prior to the commencement of this action, September 3, 1886, and payment thereof duly demanded, which was refused for want of funds, by said town treasurer. The complaint then alleges a sale and delivery of said order to the plaintiff, for value, before the commencement of the action, and that he is the owner and holder of the same; alleges that there is now due on said order the said sum of $100, and interest from the date of the presentation of the order, which sum the defendant promised and agreed to pay on demand, but has failed and neglected to do so, and the same has not been paid, or any part thereof, and demands judgment for said $100 and interest, with costs of the action.

On the argument in this court the learned counsel for the respondent moved that the appeal be dismissed, for the reason that the appellant town had not given any undertaking on appeal as required by the statute. To this motion the appellant answers that under the provisions of section 3062, Rev. St., the town may appeal without giving any undertaking, unless ordered to give one by this court. This section reads as follows: “When the state, or any state officer, or state board in a purely official capacity, or any municipal corporation within the state, shall take an appeal, service of the notice of appeal shall perfect the appeal, and stay the execution or performance of the judgment or order appealed from, and no undertaking need be given. But the supreme court may, on motion, require security to be given in such form and manner as it shall in its discretion prescribe, as a condition of the further prosecution of the appeal.” It is insisted by the counsel for the respondent that a town is not a “municipal corporation” within the meaning of this section, and cites Norton v. Peck, 3 Wis. 714, and Eaton v. Manitowoc Co., 44 Wis. 489, to sustain his contention. The first case construed the meaning of the words as used in our constitution, and the second case their meaning in section 1 of chapter 112, Laws 1867. This section limits the time within which a deed can be issued upon a tax certificate to six years from the date of the sale, with an exception that this limitation shall not apply to cases when the tax certificate is owned by counties or municipal corporations; and in that case it was held that the exception did not apply to towns; the reason given being that counties and cities were authorized to purchase at tax sales, and towns were not so authorized, and it should be presumed, therefore, that the exception was to be intended in favor of such municipalities only as were authorized to purchase and hold certificates issued on tax sales. While we are entirely satisfied with the conclusions reached in these cases, we think they are not conclusive as to the construction to be given to the words in the law now under consideration.

It seems to us that when the object of the section above quoted is considered, the town comes within the relief intended to be given as fully as the county, city, or village, and it should have the benefit of the relief. All the taxable property of the town is made liable for the payment of any judgment recovered against it, the same as the city and village, and it ought to be entitled to like privileges in its litigations. In common parlance, and even in legislative and judicial language, the word “municipality” is applied to towns as well as to cities and incorporated villages. See 1 Dill. Mun. Corp. (3d Ed.) §§ 19-21, and cases cited. We think towns are within the meaning of the law above cited, and they may appeal without giving an undertaking in the first instance. If there be any good reason for requiring an undertaking in order to stay proceedings in the action in which the appeal is taken, relief can be obtained in this court. The appeal was properly taken.

Does the complaint set up a cause of action against the town? We are very clear that it does not. If it were to be admitted that a town, within which the township school system prevails, is liable in an action for the refusal of the town treasurer to pay a school-district order drawn upon such treasurer, the complaint in this case does not show that any such order was ever drawn by the proper officers of the school-district board. There is no allegation in the complaint that the persons who signed said order were the proper officers of said school-district board. We think this allegation necessary. The court cannot take judicial notice that George Bell was secretary,...