Town of Grand Chute v. Herrick

• Decision Date: 13 June 1916
• Citation: 163 Wis. 648,158 N.W. 315
• Parties: TOWN OF GRAND CHUTE v. HERRICK ET AL.
• Court: Wisconsin Supreme Court

163 Wis. 648

158 N.W. 315

TOWN OF GRAND CHUTE

v.HERRICK ET AL.

Supreme Court of Wisconsin.

June 13, 1916.

Appeal from Circuit Court, Outagamie County; Chester A. Fowler, Judge.

Action by the Town of Grand Chute against I. J. Herrick and others, constituting the Town Board of such town, A. F. Petersen, Town Clerk, and Henoch Caliebe, Town Treasurer. Judgment for plaintiff in part, and plaintiff and defendants appeal. That part of the judgment appealed from by plaintiff affirmed, and on defendants' appeal that part of the judgment awarding the plaintiff judgment against defendants reversed, and action remanded, with directions to dismiss the complaint.

This action was brought by plaintiff, town of Grand Chute, a duly organized and existing town in Outagamie county, against the defendants I. J. Herrick, G. L. Finkle, and Joe Kohl, who constituted the town board of said town of Grand Chute, and A. F. Petersen, town clerk, and Henoch Caliebe, town treasurer of said town, to recover $1,630, with interest from the 2d day of February, 1914, this amount being $815 expended by the town board of the plaintiff town under chapter 337, Laws of 1911, upon one of the highways of said town, and also the sum of $815, which was paid into the treasury of said town by a group of freeholders of Outagamie county under said chapter 337, Laws of 1911.

The case was tried by the court, and it was held that plaintiff was entitled to recover the $815 expended by the town board, but was not entitled to recover the $815 contributed by the group of freeholders of Outagamie county, and judgment was rendered accordingly, from which both parties appealed to this court.Albert H. Krugmeier and Julius P. Frank, both of Appleton (Ryan, Cary & Frank, of Appleton, of counsel), for appellants.

Morgan & Benton, of Appleton, for respondent.

KERWIN, J. (after stating the facts as above).

There is little dispute upon the facts. The court below held that the appropriation of the $815, money of the town, was unlawful, and constituted an unlawful diversion of public funds by the town board; that the plaintiff was not estopped to recover because of delay in bringing suit, or by not commencing action to enjoin improvement of the road or the use of the funds of the town therefor.

The improvement of the highway in question was commenced during the summer of 1913, and in September, 1913, when the work was abandoned, the sum of $3,595.30 had been expended upon this highway, which money had been advanced by Outagamie county under a resolution of the county board of said county. One thousand six hundred thirty dollars of the amount advanced was the share of the state of Wisconsin under the provisions of chapter 337, Laws of 1911, and $1,630, the share of Outagamie county, and the balance, $335.30, was a portion of the town's share also advanced by the county. The whole amount expended on the improvement of the highway in question was $5,098.67, of which amount the taxpayers of the plaintiff town contributed $815. At the town meeting April 5, 1914, a resolution was adopted by the electors authorizing the newly elected town officers to commence action to recover the $815. No part of this money was actually expended until June 30, 1914, and the work was completed August 4th thereafter, and the present action commenced October 24, 1914.

It appears from the record that at the time of the annual meeting in April, 1913, there was on hand in the road and bridge fund of the plaintiff $1,611.31, and thereafter, and up to March, 1914, additions were made to this fund which raised the total to $3,458.96, and during that time orders were issued against said fund amounting to $3,392.61, which included the two orders of $815, each involved in this action.

It is true that no money had been raised by the town of Grand Chute specifically for road purposes, but a tax levy of six mills for the year 1913 for general town purposes included roadwork in said town, and the money appropriated by the defendants was from this source, except the $815 contributed by freeholders.

We shall first consider the defendants' appeal. The main question turns on whether there was a want of power on the part of the town board or an irregular exercise of power in the expenditure of the $815 town money. It may be that, if there was a lack of power on the part of the defendant to act at all in the matter under the doctrine of Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931,Milwaukee v. Binner, 158 Wis. 529, 149 N. W. 211,Wilcox v. Porth, 154 Wis. 422, 143 N. W. 165, and Land L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964, 69 Am. St. Rep....