Sage v. Town of Fifield

• Citation: 68 Wis. 546,32 N.W. 629
• Parties: SAGE AND OTHERS v. TOWN OF FIFIELD AND OTHERS.
• Decision Date: 12 April 1887
• Court: United States State Supreme Court of Wisconsin

68 Wis. 546

32 N.W. 629

SAGE AND OTHERS

v.TOWN OF FIFIELD AND OTHERS.

Supreme Court of Wisconsin.

April 12, 1887.

Appeal from circuit court, Price county.

Marshall & Jenkins, for respondents.

M. Barry, for appellants.

TAYLOR, J.

This action is brought by the respondents, owners of real estate subject to taxation in the town of Fifield, to have it adjudged by the court that a vote of the electors of said town, at the annual town meeting in said town, on the first Tuesday of April, 1886, to raise $5,000 as a road tax in said town for the year 1886, is void as to the sum of $3,000, and to restrain the supervisors of said town from incurring any expense, auditing any bills, or issuing any orders on the strength of said vote to raise $5,000 for such road purposes for the year 1886 in excess of $2,000, and that the chairman and clerk be restrained from signing any orders on the road fund of said town, or in anticipation of the levy of said $5,000 in excess of the sum of $2,000. The material allegations of the complaint, after the formal parts thereof, are that the plaintiffs are large owners of real estate in said town subject to taxation; that said town of Fifield contains more than two congressional townships; that, by reason thereof, the town has no authority to levy upon the taxable property thereof, to be raised in money, exclusive of the mill tax, any sum in excess of $2,000; that, at the town meeting in said town in 1886, the electors of said town voted to raise for highway purposes, to be collected in money from the taxable property of said town, the sum of $5,000; that said vote of the electors was illegal and void as to the excess over $2,000. The complaint then alleges that the supervisors of said town intend to and will, unless restrained by the court, issue town or road orders in anticipation of the levy and collection of said sum of $5,000; that there is no money in the treasury of said town to pay road or highway orders, and no money whatever belonging to the highway fund; and that the plaintiffs are informed and believe that said supervisors intend to proceed with road work and incur expense on the strength of said vote, to the full amount of said sum; that the town clerk of said town intends to, and, unless restrained by the court, will, place said sum of $5,000 in the tax-roll for collection, and will extend the same proportionately as a tax upon the real estate and personal property of said town. This action was commenced on the fourth day of May, 1886.

To the complaint the appellants answered, admitting that the plaintiffs owned taxable real estate in said town; that said town was duly organized, and comprised more than two congressional townships; that the persons named as defendants in the complaint were the supervisors and town clerk of said town; also admitting the corporate character of the plaintiffs. The defendants answered further as follows: “The defendants, further answering, and for a defense to said complaint, allege that heretofore, and at the annual town meeting held in and for defendant town of Fifield for the year 1881, the electors of said town, then and there assembled, voted upon the question of collecting the highway taxes in said town in money, and did then and there decide to collect such taxes in money, by voting in the affirmative upon the following motion, to-wit: ‘Moved and seconded that the road tax hereafter be collected in money, as all other tax is, until this motion is rescinded;’ that said motion, by the vote of said electors, was carried at said meeting, and by the adoption thereof it was decided to collect the highway taxes in money; that said vote has never been rescinded, and that the highway taxes for that year and ever since have been collected in money, and at the same time and in the same manner as other town taxes, and as a substitute for and in lieu of any and all other taxes for highway purposes, including the mill tax, so called; that pursuant to said vote, so passed, the electors of said town assembled at the annual town meeting for the year 1886, voted to raise the sum of ($5,000) five thousand dollars for highway purposes; and that the said sum does not exceed the limitations now prescribed by law. Further answering, defendants deny each and every material allegation in said complaint contained not hereinbefore specifically admitted, explained, or denied. Wherefore the defendants demand judgment against the plaintiffs for their costs and disbursements in this action.”

A temporary injunction was issued on the ex parte application of the plaintiffs. After filing the answer, the defendants moved to dissolve the injunction. This motion was made on the pleadings, and a certified statement of the aggregate valuation of the taxable property in said town. This statement shows that the value of the taxable property in said town for the year 1885 was $516,815.77. The motion was heard by the circuit court, and denied, and from the order denying the motion to dissolve said injunction the defendants appeal to this court.

The appellants insist that the circuit court erred in refusing to dissolve the temporary injunction-- First, because the complaint does not state facts which, if admitted to be true, would justify the court in granting the relief prayed for in the complaint, even if it were admitted that the electors of said town had no authority to vote a road tax upon the taxable property of said town exceeding the sum of $2,000; and, second, that the answer of the appellants shows clearly that there was no intention on the part of the defendants to levy or collect a road tax in said town for the year 1886 in excess of the amount authorized by the laws of the state.

It seems to us that, unless we overrule the case of Judd v. Fox Lake, 28 Wis. 583, we must hold that the plaintiffs have not in their complaint stated facts sufficient to entitle them to equitable relief. In that case the complaint alleged that the electors of the town illegally voted to raise a tax of $500 upon the taxable property of the town for the purpose of graveling a street within the village of Fox Lake, and further alleged that the officers of the town intended and threatened to proceed to gravel said street in pursuance of said vote, and to expend thereon the said sum of $500 at the cost and expense of the tax-payers of the town of Fox Lake, and to draw upon and sign orders on the town treasurer for the payment of the said $500, and take any steps necessary and do any official act in furtherance thereof, etc.; that they threaten and intend to insert, or cause to be inserted, the said sum of $500 in the taxroll of said town, etc. The relief prayed in said complaint was that the defendants be enjoined from carrying said resolution into effect, and from doing any...