Town of Humboldt v. Schoen
| Decision Date | 07 January 1919 |
| Citation | 170 N.W. 250,168 Wis. 414 |
| Parties | TOWN OF HUMBOLDT, BROWN COUNTY, v. SCHOEN ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Brown County; Henry Graass, Judge.
Action by Town of Humboldt, Brown County, against Louis Schoen and others. Judgment for plaintiff against defendants Schoen and Clabot, and defendant Louis Schoen appeals. Affirmed.
This action was brought by the town to recover the sum of $1,214, with interest and costs and disbursements, for sums alleged to have been illegally expended by the defendants as town officers. The complaint alleges that Louis Schoen, Eugene Panure, and John Pigeon were supervisors of the town of Humboldt, and that Fred Clabots and Joseph Baumgart were respectively clerk and treasurer. That at the annual meeting of the town held April 6, 1915, the following resolution was adopted by the electors of the town: “Motion made and seconded that the town of Humboldt be brought under, and is hereby brought under the county and state drainage system; and be it further resolved that the town board of supervisors of said town shall lay out the different districts and fix the number of districts in said town at their first meeting after this day.” That the town board, without lawful authority other than that mentioned in the resolution, made a contract with the Steller Engineering Company to survey and lay out a system of drainage ditches in the town, and thereafter town orders payable to the Steller Engineering Company and other persons so employed were issued to the amount of $1,214. The orders were issued by direction of the defendant Schoen, as being audited by the town board and countersigned by the defendant Fred Clabots, as town clerk, and were paid by Joseph Baumgart, as town treasurer, out of the funds of the town which had been raised for general town purposes and for highway purposes, and in part by a special tax levied by the town board; all of the officers thus mentioned presumptively knowing that the funds in the town treasury could not lawfully be used for this purpose.
The answer of the defendant Schoen alleges that the various acts of the town board were performed by authority given them by the town meeting under the resolution and subsequent appropriation of money in part payment of the amount sued for; that the board acted in good faith; that the work of procuring of the survey was a necessary preliminary to the establishment of a drainage system for the town; that the work covered a period of about one year, and that at all times the residents and taxpayers of the town knew of the work and acquiesced in it; that the acts of the town officers were fully approved at the town meeting held in April, 1916. The answer further alleged that the town contained a population of more than 500 and had one or more incorporated villages located therein, and that the town board was therefore vested with authority, under section 776, subd. 13, Stats., to incur these town obligations under the resolution adopted at the town meeting held on April 6, 1915.
A joint answer, filed by the defendants Panure, Pigeon, Clabots, and Baumgart, alleges that the sum of $500 had been raised by the town for the purpose of meeting a part of the indebtedness mentioned in the complaint, and that this special fund had been used by the defendant Louis Schoen towards paying the indebtedness; that by authority from the electors of the town the remainder of the money so used was paid by money borrowed by due authority of the electors of the town; that the defendants Eugene Panure and John Pigeon never authorized the payment of the money and had nothing to do with the payment thereof; that the defendants Fred Clabots and Joseph Baumgart performed the acts relative to the payment of the money in good faith, not knowing of any illegality, and believing that they had full authority in the matter; that at the regular meeting subsequent to the payment of the money the clerk reported the matter concerning the payment of the money to the electors and that the electors acquiesced in the payments; that by reason of their silence and acquiescence the town and its electors are estopped from claiming any illegality of such payments and from recovering the same from the defendants.
The jury found by special verdict, among other facts, that: Louis Schoen and Fred Clabots as officers of the town, issued town orders in payment for the survey for drains to the amount of $1,214, and that the same were paid by the treasurer, Joseph Baumgart; that the town orders were signed by Louis Schoen and Fred Clabots...
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...135, 145 Minn. 322;Board of Commissioners v. Nelson, 52 N. W. 991, 51 Minn. 79, 38 Am. St. Rep. 492; 40 Cyc. 256, 259; Humboldt v. Schoen, 170 N. W. 250, 168 Wis. 414). Proof of an estoppel must be clear and will not be created by inference. Bank v. Wernick (N. D.) 199 N. W. 948. [6] The me......
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City of Williston v. Ludowese
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