Trester v. City of Sheboygan

• Decision Date: 10 April 1894
• Citation: 87 Wis. 496,58 N.W. 747
• Parties: TRESTER v. CITY OF SHEBOYGAN ET AL.
• Court: Wisconsin Supreme Court

87 Wis. 496

58 N.W. 747

TRESTER

v.CITY OF SHEBOYGAN ET AL.

Supreme Court of Wisconsin.

April 10, 1894.

Appeal from circuit court, Sheboygan county; N. S. Gilson, Judge.

Suit by Henry W. Trester, a taxpayer, against the city of Sheboygan and others, for an injunction. Plaintiff and the city both appeal. Reversed, and judgment ordered for plaintiff.

This is an action in equity, brought by Trester, a taxpayer and resident of the First ward of the city of Sheboygan, to enjoin the city and its officers from paying to one Zimball the amount of certain promissory notes executed by the city officers to said Zimball. It appears by the pleadings that at a meeting of the common council of the city held April 7, 1890, Zimball made the following written proposition to the city: “Proposition submitted by August Zimball to the mayor and common council, as proposition submitted to them for consideration: For the sum of $1,175, to be paid as follows: $300 at ensealing, $500 February 1st, 1891, and $375 on July 1st, 1891,--I will cause a deed of dedication to be executed to the city of Sheboygan for a street extending through my property from Eighth to Sixth streets, and cause same to be graded, and sidewalks put down, either plank or brick, six feet wide, all to be completed before August 1, 1890.” This proposition was accepted by the council at the same meeting, but no fund was designated out of which the payments were to be made; and on the 18th day of April, 1890, Zimball executed and delivered to the city a deed of dedication, for street purposes, of the strip of land named in the written offer, and the city paid the sum of $300 thereon, and executed promissory notes for the balance, payable according to the terms of the offer. These notes have not been paid, and this action is brought to prevent their payment. The city immediately opened the street, and it has since been used by the public as such. No proceedings were taken to condemn the land. The action was originally brought against the city, the mayor, clerk, comptroller, and treasurer. These defendants answered, not denying any of the material allegations of the complaint, and praying that Zimball be made a party defendant, in order that a complete determination of the matters in controversy might be had. Thereupon Zimball was brought in, and answered to the merits, substantially admitting the facts above set forth. In his answer he also alleged the same facts, with others, by way of counterclaim as against the plaintiff and the city of Sheboygan, and alleged that he graded the alleged street and put sidewalks thereon as proposed in his offer, and claimed that by reason of all the facts the city was estopped from contesting his claim for payment of the notes, and prayed for judgment establishing the validity of the notes, and for judgment against the city for the amounts due thereon, or, in case the proceedings be held void, that the deed of dedication be declared null and void. No reply appears to have been made to the so-called “counterclaim” by any of the parties, and the case was tried before the court. The evidence was brief, and did not change materially the facts set forth in the pleadings. The circuit judge made findings of fact in accordance with the foregoing statement, and held that the plaintiff was entitled to an injunction against the payment of any sum on the contract out of the First ward fund, but that the sums represented by the notes were a valid charge on the general fund of the city, and that Zimball was entitled to judgment against the city for the amount of the unpaid notes and interest and costs. Judgment was entered in accordance with the findings. The defendant city appealed from the entire judgment. The plaintiff, Trester, appealed from the whole judgment, except that part which enjoined the payment of any sum out of the First ward fund, and that part which awarded him costs. Both appeals were argued together.Paul T. Krez, for plaintiff.

Carl Runge, for defendant.

WINSLOW, J. (after stating the facts).

It is well settled in this state that a taxpayer of a municipal corporation may maintain an action to enjoin the misappropriation of the funds of the corporation. Bay Land & Imp. Co. v. Town of Washburn, 79 Wis. 423, 48 N. W. 492. The main question presented, therefore, is whether the payment of the notes given to Zimball would be a misappropriation of the funds of the association, and the solution of this question depends primarily upon the answer to another question, namely, has the city of Sheboygan power to purchase an easement for street purposes? The powers of a municipal corporation are well understood. They are very clearly stated by Mr. Dillon in his work on Municipal Corporations (volume 2, 4th Ed. § 89) as follows: “First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation, not simply convenient, but indispensable.” Tested by these rules, we are to determine whether the city of Sheboygan had power to make a contract for the purchase of an easement for street purposes, or, to express it more briefly, could it buy a street? The city charter of the city is chapter 124, Laws 1887. Title 6 of this chapter provides for the condemnation of public grounds and...