Bennett v. Town of Nebagamon

99 N.W. 1039, 122 Wis. 295, 1904 Wisc. LEXIS 160

• Court: Wisconsin Supreme Court
• Decided: June 10, 1904
• Status: Published

Opinion

Siebeckeb, J.

Tbe pleadings in tbe case concede that the electors of tbe town of Nebagamon adopted tbe resolutions set out in tbe foregoing statement of facts at tbe annual meeting held in April, 1902. A controversy exists as to its legal effect. Under subd. 13, sec. 776, Stats. 1898, tbe electors-of a town containing an unincorporated village having a population of not less than 1,000 may by resolution direct that all powers relating to villages which are conferred upon village boards by cb. 40 of these statutes be exercised by the-board of such town, excepting those tbe exercise of which would conflict with tbe statutes relating to towns and town boards. Tbe resolution adopted by tbe town’s electors directs that tbe town “shall exercise and have conferred upon it all powers relating to villages and which are conferred upon village boards by” this chapter. Tbe meaning and application of this act of tbe electors must be ascertained from the facts and circumstances before us. The argument that tbe resolution, in its effect, simply confers tbe powers of village boards on tbe town board, without empowering it to execute them, assumes that tbe electors sought to do only that which the statute accomplishes, namely, that such powers be conferred upon the town board without the right to exercise them. This interpretation makes the proceeding an idle ceremony, and declares the electors did not thereby purpose to effect any object for the administration of their town affairs. This proceeding of the town electors must be construed in the light of the circumstances under which it was taken. Under the terms of the statute the only proceeding on the part of the town is to direct its officers to exercise these powers. The resolution is couched in language which specifies with sufficient clearness what the electors purposed to accomplish by adopting it. Its terms declare that the town shall exercise all powers conferred upon village boards within the specified chapter of the statutes. The ordinary meaning of the language, when applied to the circumstances before us, signifies that the town shall carry out or perform the duties imposed upou village boards. It was, iu effect, a direction to the towu board to exercise all the powers conferred upon village boards in ch. 40, Stats. 1898. Land, L. & L. Co. v. Brown, 73 Wis. 294, 40 N. W. 482. Nor can we find any foundation for the claim that these powers, conferred by this resolution, can only be executed by the town through its electors. It has no such restricted effect. Its adoption by the electors clearly empowered the town board to carry out the powers conferred upon village boards. This is the evident inference from the terms of the resolution, under the statute.

It is further contended that towns which are authorized to exercise the powers of village boards under ch. 40, Stats. 1898, have no authority to issue bonds to raise money necessary for establishing a fire department and providing fire protection by the purchase of fire engine and other apparatus and by the erection or construction of pumps, water mains, reservoirs, or other waterworks for the extinguishment of fires. Appellants assert this authority upon two grounds: first, under the powers granted villages to issue bonds by sec. 942, Stats. 1898. It is insisted in argument that the provisions of this chapter are a necessary complement to the powers of villages as enumerated in ch. 40 of these statutes, and should be treated as though a part thereof. Some reliance is placed upon the decision in Hurley Water Co. v. Vaughn, 115 Wis. 470, 91 N. W. 971, to support this view. The decision was made under ch. 292, Laws of 1883, and does not meet the present state of legislation on this subject. Subd. 13, sec. 776, of the present statutes, supplants ch. 292, Laws of 1883. Under the former law, town boards could exercise all the powers conferred by ch. 40, and all acts amendatory thereof, while the present law confers only the powers enumerated in ch. 40. This change in the terms of the act conferring such powers must be held to restrict them to those specifically embraced in ch. 40, and they cannot be extended to powers relating to and conferred upon village boards outside of the limits of this chapter. The town, therefore, could not exercise the power to issue bonds, under sec. 942, Stats. 1898.

The second ground for the exercise of this power is based upon the doctrine that, while municipal corporations can exercise no power except those expressly conferred upon them by law, they may resort to the necessary and customary means in executing the powers granted them. The power to provide a system of fire protection was clearly conferred on the town by sec. 893 of ch. 40. The further inquiry is presented, Is the raising of money by the issuance of town bonds for this purpose the means usually and customarily incident to the proper execution of this important municipal function ? The question is, however, not a doubtful one in this state. This court at an early day passed upon it in the case of Mills v. Gleason, 11 Wis. 470, and since then has reaffirmed the doctrine of that case in the following cases: State ex rel. Hasbrouck v. Milwaukee, 25 Wis. 122; State ex rel. Priest v. Regents, 54 Wis. 159, 11 N. W. 472; Kilvington v. Superior, 83 Wis. 222, 53 N. W. 487; Oconto City W. S. Co. v. Oconto, 105 Wis. 76, 80 N. W. 1113; Ellinwood v. Reedsburg, 91 Wis., 131, 64 N. W. 885. In Mills v. Gleason, in speaking of the power of a city to make a loan or issue its bonds for a like purpose, the court observes:

“There is no special act and no provision of its [city] charter expressly authorizing it, and it was said that without this the power to borrow money did not exist, and could not be claimed as an incident to the execution of the general powers granted by the charter. The charter does confer power to purchase fire apparatus, cemetery grounds, etc., to establish markets, and do many other things for the execution of which money would be necessary as a means. It would seem, therefore, in the absence of any restriction, the power to borrow money would pass as an incident to the execution of these general powers, according to the well-settled rule that corporations may resort to tbe usual and convenient means of executing tbe power granted; for certainly no means is more usual for tbe execution of suda objects than that of borrowing money.”

As to tbe method of raising money it is also declared tbat:

“A corporation authorized to contract debts and to execute undertakings requiring money may borrow money for that purpose, and issue its bonds and other obligations therefor.”

There is no restriction on town boards to borrow money in the execution of the powers under ch. 40, within the limitations of the law fixing the maximum amount of municipal indebtedness. It obviously follows that they have the right to borrow money to properly carry out this municipal function, and to issue the bonds therefor in the manner and upon the conditions prescribed by the statutes.

By the Oourt. — The order sustaining the demurrer to the answer and the judgment enjoining defendants and awarding costs are both reversed, and the cause is remanded with directions for further proceedings according to law.