Town of Winneconne v. Vill. of Winneconne

• Decision Date: 20 June 1901
• Citation: 86 N.W. 589,111 Wis. 10
• Parties: TOWN OF WINNECONNE v. VILLAGE OF WINNECONNE.
• Court: Wisconsin Supreme Court

111 Wis. 10

86 N.W. 589

TOWN OF WINNECONNE

v.VILLAGE OF WINNECONNE.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by the town of Winneconne against the village of Winneconne. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This action was commenced July 9, 1894, by the plaintiff to recover of the defendant village certain liquor license moneys collected by the village during the years 1891, 1892, and 1893. The complaint alleged the corporate character of the town; that the defendant was a village duly incorporated, under chapter 40, Rev. St. 1878, and lying wholly within the limits of the plaintiff town, and had not at any time provided by ordinance for the support of the poor of said village, and that it had at no time a population exceeding 1,400; that the defendant had attempted to issue licenses to saloon keepers and pharmacists for the sale of spirituous and malt liquors during the years 1891, 1892, and 1893, and had received as license moneys upon such licenses a sum aggregating $2,796, and had expended of such money only the sum of $977.34 for the relief of the poor, and had used the balance thereof for other purposes; that the town system for the support of the poor was in force during all said time in the county of Winnebago and the town of Winneconne; and that no part of said moneys has ever been paid to the county. The complaint further alleged demand, and the proper filing of the claim and its disallowance. The answer pleaded in abatement that the defendant was never a duly-incorporated village; that an attempt was made to incorporate the defendant as a village in the year 1887, under the Revised Statutes of 1878, but that the law under which such attempt was made was unconstitutional, and hence that such proceedings were void, and that the defendant never became incorporated. The facts were stipulated, and the case was submitted upon such stipulation in November, 1899, and findings were made at that time by the court to the effect that defendant was formally incorporated June 3, 1887, under the general law then existing for the organization of villages, and that said law was unconstitutional, and hence that no such village as the village of Winneconne had ever existed. On these findings the complaint was dismissed, without costs, and the plaintiff appeals.

Barbers & Beglinger, for appellant.

Bouck & Hilton, for respondent.

WINSLOW, J. (after stating the facts).

Had the village of Winneconne been duly incorporated in 1887, no contention is made but that, under the facts stated, it would have been liable to the town in this action for the license money which had not been actually used in the support of the poor. Sanb. & B. Ann. St. § 1562. The complaint was dismissed, however, on the ground that at the time of the institution of the suit, and at the time the plea in abatement was made, there existed no such thing, either de facto or de jure, as the village of Winneconne, because the law under which it was attempted to be incorporated was unconstitutional. In re Incorporation of Village of North Milwaukee, 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 638. Leaving out of...