State ex rel. Marinette v. Common Council of City of Tomahawk

• Decision Date: 30 April 1897
• Citation: 96 Wis. 73,71 N.W. 86
• Court: Wisconsin Supreme Court
• Parties: STATE EX REL. MARINETTE, T. & W. RY. CO. v. COMMON COUNCIL OF CITY OF TOMAHAWK.

96 Wis. 73

71 N.W. 86

STATE EX REL. MARINETTE, T. & W. RY. CO.

v.COMMON COUNCIL OF CITY OF TOMAHAWK.

Supreme Court of Wisconsin.

April 30, 1897.

Appeal from circuit court, Lincoln county; Charles V. Bardeen, Judge.

Mandamus, on the relation of the Marinette, Tomahawk & Western Railway Company, against the common council of the city of Tomahawk. There was judgment on facts found by the court, discharging the alternative writ, and dismissing the petition, and relator appeals. Reversed.

This was a proceeding to obtain a peremptory writ of mandamus to compel the common council of the city of Tomahawk to cause subscription to be made, on behalf of said city, on the books of the said railway company, for shares of the capital stock thereof, equal to $9,000, and to pass and enact an ordinance or resolution directing and requiring the mayor and city clerk to sign, seal, and issue on behalf of said city, and deposit in escrow with J. W. Ladd, cashier, etc., as trustee, municipal bonds of said city of Tomahawk in a like sum, running to the said railway company as payee, bearing interest at the rate of 6 per cent. per annum, etc., and directing said Ladd to deliver said bonds to the relator company upon the finishing and completing of its railroad from said city to a point in section 34, township 35 N., of range 8 E., and the passage of cars over the same on or before December 1, 1895, upon a contemporaneous delivery to said city of such certificates of shares of the capital stock of said railway company; and, further, that said common council, prior thereto, enact an ordinance or resolution directing an annual levy of taxes in said city, in addition to all other taxes, sufficient to pay the interest annually growing due on said bonds, and also to pay and discharge the principal thereof by the time the same shall be due, according to their terms. A return was made to the alternative writ, and the issue was tried before the court, upon which there was a finding of facts, not excepted to, and, as a conclusion of law, that the relator had no right to the relief asked. Judgment was given dismissing the proceeding, with costs, from which, when perfected, the relator appealed.

The relator founds its right to relief upon proceedings under the general law in relation to issuing corporate bonds for the purpose of paying for an authorized subscription to the stock of the railroad company. Rev. St. § 942, and following sections. The relator submitted a proposition to the clerk of the city, pursuant to section 945, which was filed October 13, 1894. The formalities required by section 946 were observed, and December 17, 1894, the relator filed with the common council a petition, signed by the requisite number of resident taxpayers. At the time of the commencement of the present proceedings, the relator had commenced, and during their pendency had seasonably completed, the road. On the 21st day of January, 1895, the relator requested the common council to cause a subscription to be made for stock to fulfill the contract so made, and to execute and issue the bonds, etc., in order to carry it out, and tendered full performance of such contract on its part. Defendant neglected and refused to issue the bonds, and assigned as reasons for so doing: First, because such bonds could not be lawfully issued, under the charter of the city of Tomahawk, incorporated March 25, 1891 (chapter 58, Laws 1891); second, because, with the existing indebtedness of the city, the proposed bond issue would make such indebtedness exceed the constitutional 5 per cent. limit; third, because the law authorizing the issue of the bonds is unconstitutional. It was found by the court: (5) That the assessed valuation of the taxable property of the city for the year 1894, fixed by the board of review of the city, was the sum of $444,549.50, and that the value of the taxable property of said city, as fixed and determined by the county board of Lincoln county, at its meeting November 15, 1894, pursuant to section 1073, Rev. St., was $485,545. (6) That on the 12th of November, 1891, the city issued its municipal bonds, known as “Waterworks Bonds,” in the sum of $15,500, bearing interest at the rate of 6 per cent. per annum, which were purchased and held by the state of Wisconsin at their par value. That there was unpaid on said bonds, between October 13 and December 17, 1894, the sum of $12,500, principal, and interest thereon, at the rate aforesaid, from November 12, 1893; and that $1,500 of the principal and one year's interest on the total unpaid principal became due November 12, 1894. That December 3, 1894, the common council made the following tax levies, among others, for the then ensuing year: Waterworks bonds, $1,500; interest on the same, $660; bridge tax, $1,200; incidentals, $2,000; school fund for all purposes, $8,996.50; borrowed money, $2,500. That said taxes were collected after December 17, 1894, and the said sum of $1,500 above mentioned, and $660 for interest on the same, was paid to the state treasurer in February, 1895, and a further payment on the said bonds of $1,500, principal and annual interest for the year ending November 12, 1895, was made on the day last named. (7) That the board of school directors of the town of Rock Falls, Lincoln county, borrowed from the state, May 17, 1889, $6,665, to be repaid in annual installments of $666.50 each, payable February 1st of each year, with interest at 6 per cent. per annum; and that December 17, 1894, there was unpaid on said indebtedness the sum of $2,666 of principal, with interest from May 17, 1894, and no more; and that $666.50 of principal and one year's interest became due February 1, 1895, prior to the commencement of this action. That, by request of the officers or agents of the board of school directors of Rock Falls, the county clerk of Lincoln county each year certified to the city clerk of the city of Tomahawk (the territory of which was taken from the town of Rock Falls) the amount of the state tax levied by the state of Wisconsin in the years 1892, 1893, and 1894, and certified by the secretary of state to the said county clerk, to pay the installments of said debt and interest which became due February 1, 1893, February 1, 1894, and February 1, 1895, and taxes had been levied on the taxable property of the city of Tomahawk for the purpose of paying a proportion of said indebtedness. These, with other facts, were relied on as tending to show the assumption of a certain proportion of said debt by said city. (8) November 23, 1894, the city borrowed of W. H. and J. W. Bradley $2,500, to be repaid with interest at 7 per cent. within 90 days, and a promissory note therefor had been given by the proper authorities of the city, and the item of $2,500 for borrowed money, in the tax levy already mentioned, was for the purpose of repaying said loan, which in fact was paid February 21, 1895. (9) That on the 28th of November, 1894, the city was indebted to the Rice River Lumber Company in the sum of $175, for lumber to be used by the said city in repairing its streets, but this bill was paid January 21, 1895, and the city had at all times sufficient funds in its possession to pay the same. (10) That on December 3, 1894, the common council levied on the taxable property of the city, for state and county taxes, the amount of $5,420.91, which was collected and paid to the county treasurer of Lincoln county in March and April, 1895. (11) That in December, 1894, and prior to the 17th day of said month, the city had entered into a contract with S. M. Hewitt & Co. and the town of Rock Falls, to build a bridge across the Wisconsin river, between the city of Tomahawk and the said town of Rock Falls, and that the city should pay for building said bridge, as its share, the sum of $1,200. That Hewitt & Co. entered upon the performance of said contract prior to the 17th day of December, and completed the same prior to the commencement of this proceeding; and the city paid said sum to Hewitt & Co., in February, 1895, from a tax levy for the payment of that sum December 3, 1894. (12) That the city had entered into two contracts with one Garland for the extension of the waterworks system of the city, one made July 23, 1894, and the other September 25th of the same year; and that they were performed about the 11th day of December, 1894. That on the 17th of December, 1894, prior to the filing of the petition, signed by resident taxpayers, the city paid to said Garland the balance due him under said contracts, and had at all times on hand funds available for that purpose, sufficient to pay all amounts to accrue to him under said contracts, as the same became due. (13) That on December 11, 1894, the common council appropriated, out of funds then in the treasury, the sum of $400 for the erection of a pesthouse; and on December 29, 1894, city orders to the amount of $400 were issued to certain contractors who had been employed by said committee to construct said pesthouse, said contractors having commenced work on the same December 14, 1894. (14) In the summer of 1894, one Sykes prepared plans and specifications for waterworks extension, for which he filed a bill for $64, which was disputed, but it was compromised January 1, 1895, and paid at the sum of $50; but the city had at all times on hand sufficient funds available to pay such demand. (15) Prior to the 16th of November, 1894, the city contracted for the services of certain teachers in the city schools, by which they were to work at a stated price per month, the contract being good from month to month, and for no greater period; and under said contracts there became due to the teachers, December 21st, wages for the month ending on said day in the aggregate of $620, and on the same day said sums were paid to them by said city; the amount earned up to the 17th day of said month being $513.39. All the wages of teachers prior to said month had...