Webster v. Douglas Cnty.

• Decision Date: 10 January 1899
• Parties: WEBSTER ET AL. v. DOUGLAS COUNTY ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 181

77 N.W. 885

WEBSTER ET AL.

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Douglas county; W. F. Bailey, Judge.

Action by Andrew J. Webster and others against Douglas county and others. From a judgment for defendants, plaintiffs appealed. Affirmed as to defendant the Duluth Trust Company, and reversed as to the other defendants.

This is an action in equity commenced August 7, 1894, by the plaintiffs, as taxpayers of Douglas county, on behalf of themselves and all others similarly situated, against the county, its supervisors, treasurer, and clerk, together with certain contractors for highway work, to enjoin the alleged illegal expenditure of $8,000, which was then about to be expended in repairing highways throughout the county. A preliminary injunctional order was obtained at the time of the commencement of the action, and served with the summons and complaint; but on the 4th of August twelve warrants had been issued, signed by the chairman of the board of supervisors and the county clerk, to various parties who had done work upon the highways, aggregating $2,984.75, and on the 6th of August nine of these orders were paid by the county treasurer, aggregating $2,342.95. Thereupon an amended complaint was served early in September, alleging the issuance and payment of these last-named orders, and claiming that such payment was collusive and with intent to defeat the action, and claiming to recover all the money so paid of the defendants who had received it as well as to enjoin any further payments. On the 28th of December following, a second amended and supplemental complaint was served, and additional defendants were brought in by leave of court. By this complaint it was charged that the county board had paid out $4,402.63 upon illegal highway work in addition to the $2,342.95 previously paid out, and it was sought to recover this sum of the officials who had paid it out, as well as of the parties who had received it, and to enjoin any further payments. The pleadings are long, and it is not deemed necessary to state them any more fully. The facts were mostly admitted upon the trial, and were, in substance, as follows: In the county of Douglas, outside of the city of Superior, there are four towns, to wit, Superior, Gordon, Brule, and Nebagamain, and there were, at the time of the commencement of the action, 13 members of the board of supervisors, all of whom were made defendants in this action. At the November meeting, 1893, the board of supervisors levied a county road tax of $8,000, under the provisions of section 1308, Rev. St. 1878. Prior to the 5th of June, 1894, all of this $8,000 had been spent upon the highways in the county. On the 5th of June the following resolution was passed by the board of supervisors: “Whereas, the road and bridge committee of Douglas county find that the roads and bridges throughout the county are in need of repairs: Therefore, be it resolved that the county board be requested to levy a tax of eight thousand dollars ($8,000.00) at the annual meeting in November next, for road and bridge purposes, said levy to be equally divided between the towns of Brule, Gordon, Superior, and Nebagamain; and that the chairman of the various towns are authorized and instructed to expend two thousand dollars ($2,000.00) in their various towns under and by direction and recommendation of the road and bridge committee of said county of Douglas.” Work immediately commenced under this resolution consisting of filling, grading, and ditching various roads in the several towns of the county, but no road commissioners were appointed to superintend the work, nor any bonds required from contractors, as required by section 1309, Rev. St. 1878. On the 3d of August, 1894, the county board of supervisors adopted the following resolution: “Whereas, it is evident that the money levied for normal-school purposes will not be required until November: Resolved, that eight thousand dollars ($8,000.00) of that amount be transferred to the road and bridge fund, and, when the road and bridge levy is made at the annual meeting, the same shall be credited by the county clerk to the normal-school fund, the same to be expended on county roads.” On the same day they allowed the following bills for work which had been done under the resolution of June 5th, viz.: A claim for $1,007.25 in favor of the defendant McLaggan for road work in the town of Gordon; also a claim in favor of the defendant Agen for $41.80 for road work done in said town of Gordon; also a claim in favor of the defendant Cassidy for road work done in the town of Nebagamain for $1,008; also a claim in favor of the defendant Cloney for road work done in the town of Nebagamain amounting to $927.70. On the following day twelve county orders were issued for the bills so allowed, and delivered to the defendants in whose favor they were allowed, and on the 6th day of August, being the day before the injunctional order was served, nine of said twelve orders were presented and paid. Four of said orders, amounting to $1,008, and covering the claim of Cassidy, were paid to the defendant McClure, who was a supervisor from the town of Nebagamain, and to whom Cassidy had indorsed the orders. The McLaggan orders, amounting to $1,007.25, were paid to the defendant the Duluth Trust Company, to whom McLaggan had indorsed them; and the order for $327.70, being one of the Cloney orders, was paid to the defendant O. K. Anderson, the county clerk, to whom it had been transferred. On the 7th of August, 1894, the preliminary injunctional order was served with the summons and complaint, which enjoined the board of supervisors from proceeding to expend money or doing work under the resolution of June 5, 1894, and from expending any money or doing any road or bridge work until after a road tax, not exceeding $8,000, should be thereafter levied at the annual meeting, and from expending anything after such levy “except on main traveled highways legally laid out and duly and legally adopted as county roads,” and from allowing any bills for road or bridge work until after such levy, and then only for work performed after the levy, and from signing or issuing any county orders for such bills; also enjoining the county treasurer from paying any orders previously issued, including the orders issued on the 4th of August in favor of McLaggan, Agen, Cassidy, and Cloney. On the 3d of September following, this temporary injunctional order was modified by the circuit court by striking out the words, “except upon main traveled highways legally laid out and duly and legally adopted as county roads,” and inserting in place thereof the following words, viz. “except main traveled highways or parts of said highways duly and legally adopted as such, or such highways or parts thereof duly and legally designated for the expenditure of county money in their repair, pursuant to section 1308 of the Revised Statutes, and except in the exercise of the powers conferred upon counties pursuant to section 1311 of the Revised Statutes,” and by adding thereto the following provision: “Ordered, further, that said injunctional be, and the same is hereby, modified so far as the same enjoins the county board from proceeding in the manner provided by law to make necessary repairs upon roads mentioned in the above exceptions, such repairs to be paid for out of the next levy regularly made for such purposes; but the issuing of county orders therefor in advance of such levy, or the taking of funds heretofore raised by taxation for any other special purpose, to pay for any such repairs, are hereby, during the pendency of said action and until the further order of the court, strictly enjoined.” Notwithstanding this order, work proceeded upon the highways of the county under the resolution of June 5th, which work was principally grading and ditching; but at the annual meeting of the board of supervisors in November, 1894, the county board duly levied $8,000 as a county road tax, under section 1308, Rev. St. 1878. At an adjourned meeting of said board of supervisors, held on the 22d of December, 1894, at which seven supervisors only were present, the remaining bills for the work done under the resolution of the 5th of June were allowed, and county orders directed to be issued therefor, and were almost immediately issued, to the various persons who had performed such work, or to whom the claims for such work had been assigned, all of whom are made defendants in this action. The greater part of these orders were paid by the county treasurer on the same day. At that time there was no money in the road and bridge fund of the county, and could not be until the taxes levied at the November meeting were collected. There was much dispute as to whether the highways upon which the work had been done had been adopted as county roads, or whether they had been so designated, under section 1308, that the county might properly spend its funds in improving them; but, in the view which is taken of the case, it is not deemed necessary to go into this dispute. It was undisputed that the contracts for the work which was done under the...