Hewitt v. Town of Grand Chute

By the Court, Smith, J. This is an appeal from the Outa-gamie circuit court, from an order overruling a demurrer to the plaintiff’s complaint. The complaint alleges that the defendant, an organized town of the county of Outagamie, by an act of the legislature of the State of Wisconsin, approved on the 10th day of February, A. D. 1854, entitled “ An act to authorize the towns therein named to subscribe for Plank Road stock,” was authorized, under the conditions and restrictions therein named, to subscribe through the board of supervisors thereof, to the capital stock of the Wolf River Branch of the Winnebago Lake and Fox River Plank Road Company, a corporation doing business in said county of Outagamie, and to pay for such subscription in bonds of the said town, payable fifteen years from their date, with interest at a rate not exceeding ten per centum per annum, payable annually at a place to be therein named.” And the said plaintiff further avers that the conditions and restrictions in the said act contained are, that the said town should subscribe not more than ten thousand dollars to such stock, and that no bonds should be issued by said defendant to the said company, unless a majority of the votes cast in said town at the election provided and mentioned in said act should be in favor of the same. And the said plaintiff avers, that the defendant did, on the 29th day of January, 1855, by Theodore Conkey, thereto duly authorized and empowed, as chairman of the board of supervisors of said town, subscribe to the capital stock of the company named in said act, under the name of the Wolf River Branch Plank Road Company, the sum of ten thousand dollars, and did receive therefor, certificates of stock on said company for [292] the same amount. And the plaintiff shows that an election was duly held, as required by said act, in the said town, on the 20th day of May, 1854 ; that said election was held and conducted, and the votes cast thereat canvassed in all respects, as required by said act; and that at such election a majority of the votes in said town upon said question, was in favor of said subscription, and of the issuing of bonds in payment for the same. The complaint then avers the issuing of eight bonds for one thousand dollars each, and two other bonds for five hundred dollars each, to the said company in consideration of certificates of stock of said company for the same amount, by Theodore Conkey, chairman of said Board of Supervisors, being thereto duly authorized, sealed with the corporate seal and signed by said Conkey as chairman, and conditioned for the payment of the respective sums named in each, in fifteen years from date, with interest at the rate of ten per centum per annum. There is also an averment of the sale and delivery of the said bonds by the company to the plaintiff, and an averment that there is due the sum of-for interest due upon each of said bonds amounting in all to the sum of eighteen hundred dollars. To this complaint the defendant demurred, assigning several causes among which, necessary to be noticed are the following: 1. It appears on the face of the complaint that the same does not state facts sufficient to constitute a cause of action. 2. It does not appear whether any or what amount was declared by the board of directors of the Wolf River Branch of the Winnebago Lake and Fox River Plank * Road Company, necessary for the completion of said road, at the time of the subscription^ the capital stock mentioned in said complaint, as required by said act of February 10th, 1854. [293] 3. The subscription was by the chairman and not by the board of Supervisors. There were other causes for demurrer specified, but we do not feel called upon to discuss them, as those above named meet the substantial objections to the plaintiff’s recovery uppn the case made by the complaint We shall consider them in their order. In regard to the first and second causes of demurrer alleged, viz: that the complaint does not state facts sufficient to constitute a cause of action, it must be observed that the Code of procedure has wrought an entire change in the mode of pleading in cases of this kind. The cause of action is founded upon a private statute, or rather upon certain instruments or contracts in writing which derive their validity from such private statute. By the common law it was necessary to set out such statute in the declaration, otherwise the court would not take notice of its provisions; unlike in this respect a public statute, of which the court was bound to take judicial notice though the latter were not pleaded. But section 69 of the Code of procedure provides as follows : “ In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. In this case, the plaintiff, in his complaint, did refer to the statute from which his right was derived, by reference to its title and the day of its passage; and he thus brought the whole statute within the judicial knowledge of the court, thus making it the duty of the court to compare the allegations of the complaint with the provisions of the statute in order to ascertain whether he was therefrom entitled to the relief thereby contemplated. We think that the intention of the legislature in the adoption of this provision was to relieve the party pleading from setting out in detail the provision of the private statute on [294] •which his claim was founded, and to enable him, by a reference to its title and the day of its passage, to bring the whole statute, with all its details, within the judicial knowledge of the court. It certainly could not have been their intention, to-.enable the party relying upon a private statute, to refer to it by its date of passage and title, thereby bringing the whole statute to the judicial cognizance of the court, and then by express reference to some of its particular provisions to exclude such judicial cognizance from all parts of such statute, except those which had been so specially set out. On the contrary, we are satisfied that when the pleader refers to the private statute on which his claim is founded, or from which it is derived,' by the date of its passage and its title,'the whole statute from thence is brought within the judicial knowledge of the court, and it must be considered in determining the rights of the parties, whether or not the pleader shall see fit to set out in his pleading one or more of its particular provisions. The statute being thus pleaded by its date and title, it is necessary that the complaint shall contain all the averments necessary to bring the cause of action therein contained within the requirements of the statute, whether such requirements are mentioned in the complaint or not. The statute thus becomes a part of the complaint. And we are also of the opinion that the whole statute so referred to by its title and date of passage, if the complaint does not contain the necessary averments to meet the requirements of the statute, whether mentioned or not in the pleading, is before the court, and the defects in the pleading, so far as they are disclosed by the statute, may be taken advantage of by demurrer, although some of the provisions of the statute may have been set out in the pleading demurred to, and others omitted. It follows, therefore, that the whole of the act of February 18th, 1854, was before the court, and it was necessary for the complaint to contain all the averments necessary to bring the [295] action of the town officers within the authority prescribed by that act, according to its essential provisions. Section 1 of chapter 40 as aforesaid, authorizes the towns therein named, under the conditions and restrictions therein after named, to subscribe, &c.; “ for such amounts not exceeding ten thousand dollars for any one town,'as may be declared by the board of directors of said company, necessary for the completion of said road at the time of such subscription It is obvious that the declaration by the board of directors of the amount necessary is indispensable to the determination of the amount to be subscribed. The town is not authorized to subscribe any other sum (less than ten thousand dollars) than such amounts as the board shall have declared necessary for the completion of the road. It is therefore necessary that the complaint should contain an averment of such declaration by the board of directors. This the complaint omits to do, and in that respect is substantially defective. This disposes of the first and second causes of demurrer herein noticed. As to the third cause assigned, we are of the opinion that the supervisors of the town could direct their chairman, as their organ, to write the subscription. They did this by resolution, duly passed, and then he became the mere organ of the board. It was not his act, but essentially the act of all of them. For the reasons before given, the order of the circuit court must be reversed and cause remanded, with directions that the demurrer be sustained, and that further proceedings be had therein according to law. Order reversed.