Supervisors of La Pointe v. O'Malley

• Decision Date: 14 October 1879
• Parties: THE SUPERVISORS OF LA POINTE, APPELLANT, v. JOHN O'MALLEY AND OTHERS, RESPONDENTS.
• Court: Wisconsin Supreme Court

47 Wis. 332

2 N.W. 632

THE SUPERVISORS OF LA POINTE, APPELLANT,

v.JOHN O'MALLEY AND OTHERS, RESPONDENTS.

Supreme Court of Wisconsin.

Filed October 14, 1879.

Appeal from circuit court, Ashland county.

John H. Knight and Vilas & Bryant, for appellant.

G. W. Cate and J. J. Miles, for respondents.

TAYLOR, J.

1. We are of the opinion that the motion of the respondents to dismiss the appeal in this case must be granted.

The motion papers show that on the twenty-first day of June, 1879, the board of supervisors of the county of Ashland duly passed and published an ordinance by which the town of La Pointe was abolished, and the territory which had theretofore been included in and constituted said town was attached to and made a part of the towns of Butternut and Ashland. This ordinance, among other things, provided that as to the judgment recovered in this action the said town of Butternut should be the successor of the town of La Pointe. The appeal in this case was taken and perfected on the twenty-sixth day of June, 1879. The notice of appeal is entitled:

“The Supervisors of the Town of La Pointe, Plaintiff, vs. John O'Malley and Samuel S. Vaughn, Defendants; and is signed by John H. Knight, plaintiff's attorney.”

The only questions we deem it necessary to consider upon the motion are-- First, is the ordinance vacating and abolishing the town of La Pointe a valid ordinance? and, second, if the ordinance is a valid ordinance could this court acquire jurisdiction over the cause by an appeal taken from the order made in said action, in the name of the town of La Pointe, after such ordinance was passed?

We are of opinion the ordinance is a valid ordinance, both for the purpose of vacating the town of La Pointe, and also for the purpose of vesting in the town of Butternut the rights which the town of La Pointe had in the judgment in said action, and its rights in other actions mentioned in said ordinance. Neither the counsel for the appellant nor respondent question the validity of the ordinance so far as it undertakes to vacate and abolish the town of La Pointe, but the learned counsel for the respondents argues that the board of supervisors of the county had no authority to make any distribution of the property of its county, and that so much of the ordinance as undertakes to make the town of Butternut the successor of the town of La Pointe, as the owner of this judgment or any other property of the town of La Pointe, the same is void. We do not think so. Section 22, article 4 of the Constitution provides that “the legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.” Under this provision of the constitution, the legislature has, among other things, conferred upon the boards of supervisors of the several counties the power-- First, “to set off, organize, vacate and change the boundaries of the towns in their respective counties, subject to limitations hereinafter prescribed, designate and give names thereto, fix the time and place of holding the town meeting therein, and make all necessary orders for the preservation of the records and papers of any town which may be vacated.” Sub. 1, § 670, R. S. 1878.

The limitations referred to in the part of the section above quoted do not in any way affect the ordinance in question. Section 672, R. S. 1878, provides that whenever the county board shall form a new town from parts of a town or towns already organized, they shall, by their ordinance of division, determine what portion of the indebtedness of the old town or towns shall be chargeable to the respective portions so detached to form such new town; and such new town shall pay the proportion of such indebtedness so declared chargeable to such detached portions, at such times as the same shall become payable; and for that purpose the town board of such new town shall levy a tax upon all the taxable property of such portions thereof so chargeable therewith, and the county board, in fixing the proportion of indebtedness chargeable to the detached portion, shall divide such indebtedness pro rata, according to the last assessment rolls of such old town.” The other legislative powers conferred upon the several county boards of supervisors are all conferred in the most general terms, thus: Third. “To alter, vacate or discontinue territorial or state roads within their respective counties.” Fourth. “To allow bounties for the destruction of wolves, lynxes and wild cats in their respective counties.” Fifth. “To change the name of any town or village, or person resident in their respective counties.” Sixth. “To alter or vacate any city, town or village plat, or any part thereof, or any street or alley therein, surveyed and recorded in any such county, upon petition by the proprietor or proprietors of any such city, town or village, or any part thereof, or lot therein, and upon such notice by such petitioner or petitioners as is required in vacating town, city or village plats in the circuit court; provided, that no city plat, or any part thereof, or any strcet or alley therein, shall be altered or vacated without the consent of the common council of such city.”

It is insisted by the learned counsel for the respondents that the county boards take no power to do anything under this provision of the constitution and grants of the legislature thereunder, except such as is expressly and in plain terms conferred upon them, and that the county boards do not by implication take any power incident to and necessary to carry out the powers granted; and he argues that this is especially so in the case of the vacation of a town, for the reason that the legislature has made an express direction that in such case the board “shall make all necessary orders for the preservation of the records of the vacated town.” It is to be inferred that the legislature intended to prohibit the board from making any other order or orders in regard to the other property of such vacated town. We do not think this a just construction of the legislative grant of power, especially as such grant is a grant of power to legislate. Under the constitution and the grant of the legislature the boards of supervisors of the several counties in the state become legislative bodies, having power to legislate upon such matters of a local nature as may be entrusted to them by the legislature. We are inclined to hold that when any subject of legislation is entrusted to said county boards, by general words, such boards acquire the right to pass any ordinance necessary or convenient for the purpose of disposing of the whole subject so committed to them, and that for the purpose of disposing of such...