Town of Depere v. Town of Bellevue

Cole, J. We are of the opinion that the complaint in this case states no cause of action, and therefore that the demurrer was properly sustained upon that ground. It appears from the allegations of the complaint, that, prior to April, 1853, and until after the first of July, 1854, the plaintiffs and defendants were included in and formed one town, known as the town of Depere. In 1853 that town was authorized by an act of the legislature to aid in the construction of certain roads, and the electors thereof voted for the issue of, and the officers of the town did issue, $5,000 in town bonds, payable in twenty years, the interest thereon being payable annually according to the terms of coupons attached to each of said bonds. Subsequently, each of the defendants was organized, by a resolution of the county board of supervisors, into a town, out of the territory originally included in the town of Depere when the bonds were issued. Before the commencement of this action the plaintiffs had paid, as interest due on such bonds, the sum of four thousand dollars; and this action is brought to compel a contribution, or a pay ment by the defendants of such a .proportional share of the whole sum due and paid for interest as their territory and the assessed valuation thereof bear to the assessed valuation of the property of the plaintiffs. And the question raised by the de murrer is, Can these towns, which were subsequently organized out of the territory originally embraced in the town of Depere, — 125 — be beld liable for a share of the original indebtedness ? This question, we think, must be answered in the negative. It is not alleged in the complaint, nor is it claimed in the argument of the counsel for the plaintiffs, that, in the organization of the defendant towns, any provision whatever was made that they should be liable for the payment of any portion of this debt. Therefore, if they are liable at all, it is because they constituted a portion of the town of Depere when the debt was contracted. But, “ by general principles of law, as well as by judicial construction of statutes, if a part of the territory and inhabitants of a town are separated from it, by annexation to another, or by the erection of a new corporation, the remaining part of the town, or the former corporation, retains all its property, powers, rights and privileges, and remains subject to all its obligations and duties ; unless some express provision to the contrary should be made by the act authorizing the separation.” This is the language of chief justice Parker, in the case of Hampshire v. Franklin, 16 Mass., 76-86, a decision which was relied on and followed as an authority in Crawford County v. Iowa County, 2 Chandler, 14; and which is referred to with strong approbation by the chief justice, when considering an analogous question, in The Town of Milwaukee v. The City of Milwaukee, 12 Wis., 93. The case of Hampshire v. Franklin is supported by other decisions, not only in Massachusetts but in other-states, and we have no doubt is a correct exposition of the law upon this subject. Windham v. Portland, 4 Mass., 384; North Yarmouth v. Skillings, 45 Maine, 133; Vogie v. Howland, 47 id., 127. These principles of law are very clearly announced by Mr. Justice Swayne, in Morgan v. Beloit City and Town, 7 Wallace, 613, to which we were referred by the counsel for the plaintiffs. That was an action in equity against the city and town of Beloit, to compel the two corporations to pay' certain judgments in the proportion which each ought to pay. The town of Beloit, under an act of the legislature, had made a sub — 126 — scription to the stock of a railroad company, and had issued bonds of the town to pay therefor. Afterwards the city of Beloit was created and organized from a portion of the territory which had constituted the town of Beloit. In the city charter was a provision that all principal and interest upon all bonds which had theretofore been issued by the town, should be paid, when the same or any portion thereof fell due, by the city and town in the same proportions as if the town and city had not been dissolved. Upon the strength of this provision the court entertained jurisdiction, and enforced the remedy against both city and town. And in the opinion Mr. Justice StVAYNE says : “ The two corporations are as separate and distinct as if the territories they embrace respectively, had never been united. It is obvious that, without a legislative provision to that effect, the city would not be answerable at law for the debts of the town incurred before the former was created. Whether, but for the statute, the city then would have been chargeable inequity, it is not necessary to consider. The statute is conclusive as to a liability to be enforced in áome form of procedure.” Pp. 617, 618. It is very obvious that this case is wholly unlike the one before us, where there are no provisions making the defendant towns liable for the debts of the old corporation, and where the remedy sought to be enforced is not at the suit of a creditor, but by the corporation itself, which has only paid the debt it contracted and was bound to pay. This view disposes of the case, and it is not necessary to notice the other questions discussed upon the argument. By the Court.— The order sustaining the demurrer to the complaint is affirmed