Schriber v. Town of Langlade

• Decision Date: 12 October 1886
• Parties: SCHRIBER v. TOWN OF LANGLADE.
• Court: Wisconsin Supreme Court

66 Wis. 616

29 N.W. 547

SCHRIBER

v.TOWN OF LANGLADE.

Supreme Court of Wisconsin.

October 12, 1886.

Appeal from circuit court, Langlade county.Houghton & Haddock and C. H. Van Alstine, for respondent, Charles Schriber.

George W. Latta and Ellis, Green & Merrill, for appellant, Town of Langlade.

TAYLOR, J.

The respondent brought his action against the present town of Langlade, to recover the amount of certain town orders set out in his complaint, and which he alleges were lawfully issued by said town, as the same was organized in 1880 and 1881, at the time said orders were issued. He also alleges that he has duly presented said orders to the treasurer of said town for payment, and that payment was refused, and therefore demands judgment, etc.

The answer admits that Langlade is a duly-organized town, and that it was organized under and by virtue of chapter 137, Laws 1885. There are various other admissions and allegations in the answer which are unnecessary to state here.

The action was tried by the court without a jury, and after the trial the court found, among other things, the following facts:

That previous to the enactment of chapter 7, Laws 1881, there was a town of Langlade duly organized as a town, in the county of Langlade, and acting as such; that such town, so organized and acting, was composed of the same territory which composes the present town of Langlade as organized under chapter 137, Laws 1885, and included, in addition thereto, townships 31, 32, 33, and 34, of range 12 E.; that by chapter 7, Laws 1881, the last-named townships were detached from the town of Langlade, and created a separate town by the name of Polar, and that the same chapter 7, Laws 1881, detached the remaining territory of the town of Langlade from Langlade county, and attached the same to the county of Shawano; and that the act of 1881, detaching a part of the territory of the town of Langlade and creating the town of Polar, made no provision for the adjustment, division, or settlement of any debts, credits, and liabilities of and between the towns of Polar and Langlade.

The court also finds that after the territory now composing the town of Langlade was detached from the county of Langlade, in 1881, and attached to the county of Shawano, no election for town officers was had in said town, and no officers were elected by the electors of said town in the years 1881, 1882, 1883, 1884; and also finds that by virtue of chapter 137, Laws 1885, the territory which composed the town of Langlade, when it was detached from the county of Langlade and attached to the county of Shawano, was then detached from Shawano county, and again made a part of the county of Langlade, and temporarily attached to the town of Polar, in said county of Langlade. Section 1, c. 137, Laws 1885, in express terms detaches from the county of Shawano and attaches to the county of Langlade the same territory that was detached from the county of Langlade and attached to the county of Shawano by chapter 7, Laws 1881. Section 2 declares that said territory is attached to the town of Polar, in Langlade county, and section 4 reads as follows: “The electors residing within the territory hereby attached to Langlade county, and to the town of Polar, in said county, may organize as a town, to be known as the town of Langlade, by holding a town meeting on the first Tuesday of April, 1885, and the election and qualification of town officers for said town for said year 1885. Said election shall be held at the school-house in New, on section twenty-seven, town thirty-three, range thirteen east. If said town meeting is held, and the organization of said town of Langlade completed, by the election and qualification of officers for said town for the year 1885, then said territory shall constitute a town, under the laws of this state, and the same shall be known as the town of Langlade; otherwise said territory shall remain a part of the said town of Polar.”

The court further found that the electors residing in said territory did hold a town meeting in compliance with the provisions of said chapter 137, Laws 1885, on the first Tuesday of April, 1885, and elected proper town officers, who qualified as such; and that such territory then became the present town of Langlade, against which this action is brought.

There are other findings and facts showing that in 1880 and 1881, during which time the orders described in the complaint were issued, there were town officers in the then town of Langlade, duly elected, qualified, and acting; and there is also a finding that on the tenth day of May, 1879, the electors of said town duly voted a tax upon the property of said town for the sum of $4,800, to be raised the ensuing year, viz., $2,000 for building school houses, $1,800 for roads and town expenses, and $1,000 for building bridges; and that on the sixth day of April, 1880, at a special town meeting held in and for said town, the electors duly voted a tax for the sum of $5,500, to-wit, $2,200 for schools and building school-houses, $300 for bridges, and $3,000 for town expenses. The court also finds certain facts in regard to the auditing and allowing of the claims for which the orders in question were issued, which, in the view we have taken of the case, become immaterial in the decision of this case.

The court found, as conclusions of law, that in 1879, 1880, and 1881 the town of Langlade was duly organized and capable of contracting town indebtedness; that neither the creation, in 1881, of the town of Polar from part of the territory of said town of Langlade, nor the annexation of the said town of Langlade by chapter 7, Laws 1881, to the county of Shawano, effected any change in its corporate organization, existence, and character, and impaired none of its powers and liabilities, and that the annexation of the town of Langlade by chapter 137, Laws 1885, to the town of Polar, was a mere temporary annexation, until it could duly organize by the election of town officers as provided in said chapter; and that such temporary annexation to the town of Polar effected no change in the corporate organization, existence, and character, and impaired none of its existing powers and liabilities; and that the failure of the town to continue its organization, and to perform the usual functions of a corporate town during a part of the year 1881, and the years 1882, 1883, and 1884, did not impair any existing indebtedness of said town, lawfully contracted during its active existence, during the years 1879, 1880, and to the month of April, 1881.

The appellant excepted to many of the findings of fact and conclusions of law. The only exceptions we deem material are the following: “The defendant excepts to the failure of the court to find that the defendant town of Langlade was first created subsequently to chapter 137, Laws 1885, and pursuant to the provisions of said chapter; and to the failure of the court to find that on the twenty-fifth of May, 1883, the county board of Shawano county duly attached all the territory embraced in the town of Langlade as organized when the same was attached to the county of Shawano, and also as organized under chapter 137, Laws 1885, and now in such town, to the town of Richmond, in said Shawano county; and that in making such annexation no provision was made for any apportionment of any debts or liabilities;” and to the failure to find that the territory annexed to the town of Richmond, as aforesaid, remained in and a part of said town of Richmond, absolutely and for all purposes, until its annexation to the town of Polar, by chapter 137, Laws 1885.

Among others, the defendant filed the following exceptions to the conclusions of law found by the court, viz.: “The defendant excepts because the court failed to find that whatever town embraced the territory of the present town of Langlade, at the time and prior to the passage and taking effect of chapter 7, Laws 1881, such territory was by said act taken from said town, and annexed to Shawano county; and, if the town from which said territory was taken contained no other territory, such town was by said annexation extinguished;” and because the court failed to find that by the annexation of the territory constituting the present town of Langlade to the town of Richmond, in 1883, the said town of Richmond became exclusively subject to all the liabilities of the town of Langlade existing at the time of such annexation, if any such town then existed; and for the failure of the court to find that the defendant is not liable upon any of the orders in question.

The learned counsel for the respective parties have discussed, at considerable length, questions connected with the issuing of the town orders upon which the action is brought; but as we have come to the conclusion that the plaintiff is not entitled to recover against the present town of Langlade upon these orders, admitting that they were lawfully issued by the former town, it becomes unnecessary to consider that part of the case.

After a careful consideration of the findings of fact and conclusions of law, as made by the learned circuit judge, were there nothing in the case except the facts found by the court, we should be inclined to hold that the defendant town would be liable for all orders lawfully issued by the former town of Langlade. If, as found by the court, after the orders were duly issued, the whole of the former town of Langlade was detached from the county of Langlade, and attached to the county of Shawano, such town organization would not be destroyed by that act, but the territory so attached to Shawano would immediately become a town of said county of Shawano, and all its liabilities would remain unimpaired. And if it failed for three or more years to elect officers, and discharge the functions of an organized town, such neglect on its part might prevent, for the time being, the enforcement of the claims against such town,...