Pape v. Town of Carlton

109 N.W. 968, 130 Wis. 123, 1906 Wisc. LEXIS 15
CourtWisconsin Supreme Court
DecidedDecember 4, 1906
StatusPublished
Cited by5 cases

This text of 109 N.W. 968 (Pape v. Town of Carlton) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pape v. Town of Carlton, 109 N.W. 968, 130 Wis. 123, 1906 Wisc. LEXIS 15 (Wis. 1906).

Opinion

Marshall, J.

From the statement it will be seen that the case turned in the court below on whether under sec. 2, ch. 83, Laws of 1899, authorizing the purchase by towns of road machines, the petition spoken of is to be signed by a majority [127]*127■of the taxpayers of the road district, or districts, representing a majority of the taxable property therein according to the last previous assessment roll of the town prior to the date of the paper, the decision being in the affirmative. The language of such section, so far as necessary to be considered, is as follows:

“The chairman of the town hoard thereof may, upon being .petitioned in writing by a majority of the taxpayers of one <or more superintendent districts of such town, representing more than one half of the taxable property in such district •or in each of such districts (to be ascertained from the last preceding assessment roll, and certified to as such by the town clerk of such town) and by the superintendent or superintendents of highways of each such district, contract,” ■etc.

The arguments of counsel have been very helpful in reaching a satisfactory conclusion here, in that they probably brought to our attention all of the decisions of this court which from any standpoint could reasonably be said to affect the matter. Each feature of such arguments and of tho learned discussion contained in the opinion of the circuit judge has been carefully studied. However, it is thought best not to treat such features here in all their details, but rather to give such attention to the authorities cited as to show generally the bearing they seem to have upon the precise point which appears to be vital on the appeal, and to confine the opinion otherwise, in the main, to the question involving such point as an original proposition, viz.: Under the statute quoted, are the signers of the petition to be regarded as petitioning the chairman of the town board for the purchase of a road machine, only as of the date of the paper ■signed by them, or are they to be regarded as petitioning such chairman at the time the paper is certified to by the town ■cleric and presented to such chairman? That involves this: Is it sufficient to render one a competent petitioner under the statute that he is a taxpayer of the road district when the [128]*128petition is certified by tbe town clerk and so presented ? Appellant stands for tbe affirmative, and if be is right tbe petition in question should have been tested by the assessment roll of 1900 instead of that of 1899, if tbe former existed, within tbe meaning of tbe law, at tbe time tbe town clerk made bis certificate.

We have little difficulty in passing successfully tbe contingency last suggested. It is considered that when an assessment roll shall have been corrected by tbe assessor and delivered to tbe town clerk under sec. 1064, Stats. 1898, which is required thereby to occur on or before tbe first Monday in August of tbe year it is made, it is an assessment roll within tbe meaning of ch. 83, Laws of 1899, notwithstanding it is still subject to correction as to mistakes under sec; 1065. Tbe prior section speaks of tbe roll, when ready to be filed in tbe town clerk’s office, as a completed roll, and so it is to all intents and purposes. In our view, if tbe chairman of a town is thereafter petitioned under said cb. 83 tbe sufficiency of tbe request, as to putting him in motion to obligate tbe town for tbe pttrchase of a road machine, is to be tested by such roll unless another shall in tbe meantime have been made. There is no authority cited to our attention, or which we can discover, throwing any light on this question. It must be disposed of as an original matter according to our best judgment.

We cannot agree that tbe allegations of tbe complaint as to* tbe chairman of tbe defendant town having been petitioned on tbe 14th_day of June, 1900, cut any controlling figure in tbe case, either standing alone or in connection with tbe date of tbe petition, even if we assume, for tbe purposes of tbe point, that tbe act of signing as to each petitioner relates to-such date. Tbe undisputed evidence is that tbe petition was-not presented to tbe chairman of tbe town board till August 25, 1900. Therefore, if that be tbe time when, in contemplation of law, he was “petitioned,” then the decision should [129]*129be accordingly, regardless of the mere conclusion pleaded that he was “petitioned” on June 14, 1900.

In the opinion of the circuit court we observe that considerable reliance was placed on Siegel v. Liberty, 118 Wis. 599, 95 N. W. 402. We are unable to give the effect'to that case which the learned court attributed thereto. The point here at issue was not there discussed or decided. The case did not disclose, as we can discover, when the petition was signed or presented to the chairman of the town. It showed when the contract was made; that it was in December, 1899, and that the sufficiency of the petition was tested by the assessment roll of 1898. However, it does not necessarily follow because the contract was made after the assessment roll of 1899 was filed with the town clerk that the chairman of the town board was not “petitioned” to make the contract prior to the filing of such roll. In the printed case used upon the appeal it appears that the plaintiff alleged that the petition was not presented to the chairman till after the 3d day of Eovember, 1899. That was put in issue by the answer and found in the defendant’s favor. The printed evidence, as we read it, does not show the date of the petition or when it was signed or when it was presented to the town chairman. Certainly the question of whether the act of “petitioning” is referable to the date of the paper or to that of its presentation to the chairman of the town was not raised or discussed or referred to in any way, so far as we can discover.

Some reliance is placed on State ex rel. Spring Lake v. Pierce Co. 71 Wis. 321, 37 N. W. 231, and State ex rel. El Paso v. Pierce Co. 71 Wis. 327, 37 N. W. 233. Those cases arose under the law of 1885, authorizing county aid to towns in the building of bridges. The law provided for such aid in case of a town having voted to construct or repair any bridge or bridges wholly or partly within such town and provided for one half the cost of such construction or repairs and such cost exceeding one fourth of one per cent, of the [130]*130taxable property in the town “according to the last equalized valuation.” The defendant, in the last case mentioned, at its annual town meeting in April, 1886, determined upon the building of a bridge and otherwise provided as indicated in the law of 1885, and after the equalized valuation of the taxable proq>erty of the town for that year was made, the county board was called upon to appropriate out of the county treasury sufficient money to defray one half the cost of the improvement. It was held that the last equalized valuation of the property of the town, existing at the time it acted on the bridge matter at its annual town meeting, was to be taken as the test of whether the county possessed authority to extend the aid requested, as the law contemplated that the right of the town thereto should become fixed upon its taking action as required by such law. We are unable to see how that decision points the way to a correct conclusion as to the question we have here.

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Bluebook (online)
109 N.W. 968, 130 Wis. 123, 1906 Wisc. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pape-v-town-of-carlton-wis-1906.