Peck v. School District No. 4

21 Wis. 516

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinions

Dixon, C. J.

Notwithstanding the ambiguity of the act, arising out of the obscure and inconsistent provisions of the second and third sections, the intention of the legislature not to-authorize the district board to contract for and pay a greater sum than $800, without the assent of a majority of the qualified voters of the district, to be expressed by a vote at a special or annual meeting, is very plain. This appears from the first section. The contract set out in the complaint is for the-payment of $1050; and it is averred that it was entered into by the board without the assent of the qualified voters, or a majority of them, given or obtained at any special or annual meeting, for the payment of the additional $250, as provided for in section one. In this the board clearly exceeded their powers, and the contract is for that reason void. There can be no doubt, in such a case, that the tax-payer may have his remedy by injunction to restrain_ the collection of taxes assessed, or supposed to have been assessed, for the purpose of giving effect to such void contract; but whether, after the supposed assessment, and after the warrant for the collection of the illegal taxes has been issued, two or more can join in an action to obtain such relief, is not a question necessarily involved in this case. For, assuming that they cannot, and that the objection of an excess of parties plaintiff may be raised by demurrer in this form, concerning which there is some conflict of opinion in New York (see Walroth v. Handy, 24 How. Pr. R., 353), still we are of opinion that this complaint presents a cause of action in which all the plaintiffs have a common interest, and for the prosecution of which they may properly join in one action. The relief demanded consists in part in having the contract entered into by the district board declared void, as well as in restraining the collection of the illegal taxes. So far as the former cause of action is concerned, that is, the annulling of the contract, the plaintiffs have properly joined, and therefore the demurrer should be overruled. But as this cause of action cannot be adjudicated in the absence of Yost, the other party to the contract, who is the person chiefly interested in sustaining the contract as against the plaintiffs, and not a party to this suit, we think the court below erred in directing final judgment for the plaintiffs. The demurrer should have been overruled, and an order entered requiring the plaintiffs to bring in Yost as a party defendant to the action. We must therefore reverse so much of the order as directs judgment in favor of the plaintiffs, and remand the cause with directions as above stated.

By the Court — Ordered accordingly.