Schulz v. Kissling

Decision Date21 June 1938
Citation228 Wis. 282,280 N.W. 388
PartiesSCHULZ v. KISSLING et al.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from an order of the Circuit Court for Waukesha County; C. M. Davison, Judge.

Affirmed.

This appeal is from an order of the Circuit Court for Waukesha County overruling the demurrers of the defendants to the amended complaint. The action was brought by the plaintiff, William Schulz, a taxpayer of the town of Menomonee, on behalf of himself and all other taxpayers of said town, against the officers of said town, to wit, the members of the town board, town clerk and town treasurer, also against the Four Wheel Drive Auto Co., a Wisconsin corporation, to compel said defendants to restore to the town treasury certain moneys disbursed by the defendant town officers to the defendant Four Wheel Drive Auto Co. It is alleged that said disbursements were made contrary to the provisions of sections 60.29, 60.33, 60.35 and 81.01, Wisconsin Statutes. The town is named as a party defendant because its consent to be joined as a party plaintiff could not be obtained because of the adverse interests of the individual defendants who are the town officers. The individual defendants and the defendant Four Wheel Drive Auto Co. separately demurred to the amended complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were overruled. There was no appearance on behalf of the defendant town. All defendants except the defendant town appeal.Lockney, Lowry & Hunter, of Waukesha, and Fisher, Cashin & Reinholdt, of Stevens Point, for appellants.

C. R. Dineen, of Milwaukee, James E. McCarty, of Milwaukee, of counsel, for respondent.

MARTIN, Justice.

The material allegations of the complaint are as follows:

(1) That plaintiff is a resident and taxpayer of the town of Menomonee, Waukesha County, Wisconsin; that he brings the action as a taxpayer of said town on behalf of himself and all other taxpayers of the town.

(2) That the individual defendants from April 1, 1935, to April 1, 1936, were respectively the chairman, supervisors, clerk and treasurer of said town.

(3) That the defendant Four Wheel Drive Auto Co. is a Wisconsin corporation engaged in the manufacture and sale of Four Wheel Drive trucks.

(4) That the town of Menomonee is a quasi-municipal corporation, one of the towns of Waukesha County and is made a party defendant for the reason that the defendants John Kissling and Fred Class constitute a majority of the town board of supervisors, the governing body of said town, and that their interests are adverse to the interests of the plaintiff and that the consent of said town to be joined as a party plaintiff could not be obtained.

(5) That according to the provisions of the Statutes of the State of Wisconsin, town boards and town officers are limited in the disbursement of moneys belonging to the town, by the provisions of sec. 60.29, Statutes, and in the allowance and payment of bills under sec. 60.33(2), Statutes, and by the provisions of sec. 60.35, Statutes, which provides that no order shall be signed or issued for the disbursement of any town money until the tax for the payment of such order shall have been voted by the electors of such town, and that no town board shall authorize the issue of any order in a sum exceeding the amount which the town is authorized to appropriate for the purpose for which such order is issued and further, that the provisions of Chapter 81, Wisconsin Statutes, relating to the disbursement of funds for highway purposes and more particularly sec. 81.01 specifically limits the expenditure which the town board may make in providing machinery, implements, material, and equipment for highway purposes, to the sum of $1,000 in any one year, unless a greater sum be authorized by the town meeting.

(6) That the defendants John Kissling, Fred Class and Peter F. Becker, acting as the town board of the town of Menomonee, did, during the fiscal year from April 1, 1935, to April 1, 1936, disburse out of the general funds of the town of Menomonee, in violation of the provisions of sec. 81.01, Statutes, moneys in excess of the sum of $1,000 without said sum being authorized at the annual meeting of the electors, in that they did on May 20, 1935, purchase from the defendant Four Wheel Drive Auto Co. one Model B truck for the sum of $1,200, and in that they did on January 4, 1936, purchase from the Four Wheel Drive Auto Co. one Model H. S. truck for the sum of $2,620 in cash and a trade-in value on the truck purchased in May, 1935, of $870.

(7) That defendants Kissling, Class and Becker, acting as the town board, did, in violation of sec. 60.33 and sec. 60.35, Statutes, act upon, consider and allow the claim of the Four Wheel Drive Sales Co., as agent for the defendant Four Wheel Drive Auto Co., in the sum of $1,200 on the 9th day of July, 1935, which claim did not specifically state each item, the date, the amount or the nature thereof separately and which was not verified by affidavit of the claimant, its agent or attorney, and that under date of July 8th, there was issued a town order on the general funds, payable to the order of the Four Wheel Drive Sales Co., agent of the defendant Four Wheel Drive Auto Co., in the sum of $1,200, signed by the defendant Kissling as chairman, the defendant Fred Chambers as town clerk, which order was paid by the defendant John E. Roberts as town treasurer.

(8) That the defendants Kissling, Class and Becker as the town board of the town of Menomonee, in violation of the provisions of sec. 60.33, Statutes, did on or about the 9th day of March, 1936, act upon, consider and allow a statement of the Four Wheel Drive Auto Co. in the sum of $2,620, which statement was not in compliance with said section in that it was not verified by affidavit of the claimant, its agent or attorney and that the said members of the town board, the defendant Chambers as town clerk, and the defendant Roberts as town treasurer, in violation of the provisions of sec. 60.35, did on or about the 9th day of March, 1936, issue a town order to the Four Wheel Drive Auto Co. in the sum of $2,620, signed by the defendant Kissling as town chairman, the defendant Chambers as town clerk; that said order was paid by the defendant Roberts as town treasurer to said Four Wheel Drive Auto Co. out of the general funds of the town, contrary to the provisions of said section of the Statutes, in that no tax for the payment of such order had been voted by the electors of the town prior to the issuance of such order.

(9) That the defendants, other than the defendants, Four Wheel Drive Auto Co. and the town of Menomonee, in the allowance of the claims as stated and the payment out of the general funds of the town treasury of the amounts stated to said Four Wheel Drive Auto Co., have illegally disbursed the funds of the town, contrary to the specific prohibition provisions of sections 60.33, 60.35 and 81.01, Wisconsin Statutes, and that said defendants are liable by reason of their said misconduct in the allowance and payment of said claims, to the taxpayers of the town of Menomonee for the repayment thereof.

(10) That defendant Four Wheel Drive Auto Co., through its agent, Four Wheel Drive Sales Co., has unlawfully received from the town of Menomonee, the sum of $3,490, which said sum this plaintiff alleges should be repaid into the treasury of the town of Menomonee.

This action was originally begun against the defendants Kissling, Class, Becker and Chambers. Thereafter, an amended summons and complaint were served upon the original defendants and including the defendants, Roberts, Four Wheel Drive Auto Co. and the town of Menomonee, the town being made a party defendant pursuant to sec. 260.12, Statutes, which provides:

“260.12 Parties united in interest to be joined. Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants; but if the consent of anyone who should be joined as plaintiff cannot be obtained he may be made a defendant, the reason thereof being stated in the complaint ***.”

[1] It is alleged in the complaint that the town is made a party defendant because its consent to be joined as a party plaintiff could not be obtained because all of the town officers are individually made defendants and their interests are adverse to the interests of the plaintiff. In order to have a complete determination of the issues involved, the municipality must be a party. See Coyle v. Richter, 203 Wis. 590, 592, 234 N.W. 906.

Sec. 81.01 (3), Statutes, relative to the duties and power of a town board, provides: “It shall be the duty of each town board and it is given power: ***

(3) To provide machinery, implements, material and equipment needed to construct and repair said highways and bridges, ** but the total sum spent under this subsection shall not exceed one thousand dollars in any year, unless a greater sum be authorized by the town meeting.”

Sec. 60.29, Statutes, so far as material, provides: “Such board is empowered and required: ***

(2) Orders on treasury. To draw all orders for the payment of money out of the town treasury for purposes allowed by law, except for the support of schools. ***

(5) Collect demands due town. To demand payment into the town treasury of all penalties and forfeitures recoverable by the town, and all damages suffered by the town by breaches of official bonds, by injuries to its property or by other injuries; and, in case of failure to comply with such demand, to bring and prosecute proper actions or proceedings to...

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5 cases
  • Feen v. Ray
    • United States
    • Illinois Supreme Court
    • December 20, 1985
    ...(corporations indispensable); Stack v. Borelli (1949), 3 N.J.Super. 546, 66 A.2d 904 (municipality indispensable); Schulz v. Kissling (1938), 228 Wis. 282, 280 N.W. 388 (town School District No. 126 does not lose its status as a necessary party merely because the district sought its own dis......
  • Hebblewhite v. Scott (In re Hebblewhite's Will)
    • United States
    • Wisconsin Supreme Court
    • June 21, 1938
  • Slezak v. Clark County, 93-0613
    • United States
    • Wisconsin Court of Appeals
    • October 27, 1994
    ...the municipality is made a party to the action. Id. Any funds recovered will be returned to the public treasury. Schulz v. Kissling, 228 Wis. 282, 292, 280 N.W. 388, 392 (1938). It would be strange indeed if the municipality had to file a claim with itself to recover illegally disbursed pub......
  • Western Supply Co., Inc. v. T.V. Appliance Mart, Inc.
    • United States
    • Wisconsin Court of Appeals
    • August 4, 1988
    ...compliance with the terms of the statute, the city, not Appliance Mart, is the proper defendant in the action, citing Schulz v. Kissling, 228 Wis. 282, 280 N.W. 388 (1938), and Coyle v. Richter, 203 Wis. 590, 234 N.W. 906 (1931). The cases are inapposite. Both were taxpayer actions challeng......
  • Request a trial to view additional results

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