State ex rel. Town of Rochester v. Board of Supervisors

Taylob, J. The learned counsel for the appellant claims that the allegations in the return clearly shoy that the adjourned town meeting mentioned in the relator’s petition, as well as the special town meeting therein mentioned and referred td, were not lawful town meetings, and so show that the relator, the town of Rochester, was not placed in a position to call upon the respondent to act under the provisions of said ch. 187, Laws of 1885. He also claims that the seventh paragraph of the return is a full defense to the writ, because it shows that the county board as such has no power to appropriate any money for the purpose mentioned in said writ. The substance of said ch. 187, Laws 'of 1885, is stated in the opinion in the case of State ex rel. Baraboo v. Sauk Co., ante, p. 485 (filed at the same time as this opinion), and need not here be restated at length. Assuming that it was not necessary for the electors of the town of Rochester to vote by ballot upon the question of the necessity of building the bridge in question, or upon the question of raising the money for that purpose by a tax upon the taxable property of the town, or upon the question whether the town would call upon the county board of supervisors of the county of Racine to aid in the construction of such bridge, or upon the question of directing the — 553 — supervisors of the town to take the proper steps under said law to require the county board to aid in building said bridge, or upon the question of directing said supervisors to commence an action to compel the county board to grant such aid, we are of the opinion that the facts set up in the return do not show that said adjourned or special town meetings, or either of them, were illegal or unauthorized town meetings. A town meeting is a deliberative body, and acts, in determining all matters that may lawfully be determined by it, as any other deliberative body, except in the election of certain officers of the town, and except in matters as to which, by express law, the question to be determined by the electors of the town is required to be determined by a vote by ballot. State ex rel. Bruce v. Davidson, 32 Wis. 114, 121; sec. 795, R. S. “Any annual town meeting may be adjourned to any other day, and from any time to any time, for the purpose of transacting any business of the town, except for the election of officers.” Sec. 785, B. S. There is no provision in the statute requiring any adjourned or special town meeting to be held at any particular hour of the day, or be open for the transaction of business at any particular hour, or to be held open for any particular time, except at a town meeting when officers are to be elected. See sec. 796, B. S. The allegations in the return upon which the illegality of said adjourned and special town meetings are predicated, are that they were not called to order in the one case until the afternoon, and in the other until 1:30 p. m. ; and that the meetings adjourned within an hour after the resolutions passed at such meetings were adopted. There is no allegation that the adjourned meeting was not adjourned to the time when the same was convened in the afternoon, nor that the special meeting was not called to be held at 1:30 p. m. of the day on which the same was held, or that the special meeting was not properly called as prescribed by law. — 554 — The theory of the return is that every adjourned and special town meeting must be called to meet between the hours of 9 and 10 o’clock a. m., and must be held open until 5 o’clock in the afternoon, as prescribed by sec. 196, R. S.j for a town meeting for the election of officers. Wo find nothing in the statute requiring this to be done in the case of adjourned or special meetings held for merely deliberative purposes and for the transaction of business not requiring a vote by ballot.- There is nothing in the return which shows that the adjourned and special town meetings were not properly called and fairly conducted; and if the electors had the power to vote the tax, and transact the other business transacted at such meetings, without voting by ballot, then the county board can have no reason to complain. See State ex rel. Bruce v. Davidson, 32 Wis. 120, and the cases there cited. It is contended bjr the learned counsel for the relator that when a petition is presented and filed by the town board of supervisors of any town setting forth the fact that said town has voted to construct or repair any bridge or bridges wholly or partly within such town, designating the location of such bridge or bridges, and stating that such town has provided for the payment of one half of the cost of such construction or repairs, and that the cost of said bridge or bridges or repairs exceeds one fourth of one per centum of all the taxable property in said town according to the last equalized valuation, the county board must make the appropriation' required by the statute; that the county board cannot go behind the petition and attack the legality of the proceedings on the part of the town or contest the necessity for building or repairing the bridge or bridges or the cost thereof. In this case there is no necessity for passing upon this question, as we hold that the proceedings of the town were regular and legal, and the county board admits the duty of the town to construct the bridge in — 555 — question, as well as the necessity for so doing; and the right of the county to contest the question of the cost of the bridge and whether it would be necessary to expend a sum exceeding one fourth of one per centum of the taxable property of the town, was decided by the circuit court in favor of the appellant. The changes made in the law since 1871 seem to furnish some ground for the contention of the learned counsel for the relator. See original law, sec. 115, ch. 19, R. S. 1858, as amended by ch. 13, Laws of 1866 (1 Tay. Stats. 511); ch. 126, Laws of 1879; ch. 315, Laws of 1881; and ch. 187, Laws of 1885. The law, previous to 1885, required the county board to act upon information to be obtained by such board before the board was required to act. But the law of 1S85 changes this radically, and requires the county board to act upon a petition to be presented by the town, alleging the existence of certain facts. As said above, we are not called upon in this case to decide how far the allegations of the petition presented by the town are conclusive upon the county board. The learned counsel for the appellant relies mainly upon the seventh paragraph of the return as a full defense to the writ. It is claimed that neither the town nor the county has anjr power to appropriate money for the construction of the bridge in question until the question of levying a tax for that purpose has been first submitted to the electors of the town and county in the manner prescribed by sec. 1321, R. S., and that consequently the county board has no power to make the appropriation or to levy the tax as required by said writ of mandamus. This contention is based upon the fact that said paragraph alleges that, at the place where the bridge is proposed to be built over the Fox river, such river is a meandered stream within the meaning of sec. 1320, R. S.; and that under the provisions of said secs. 1320, 1321, R. S., no money can be appropriated by either the town or county board for such purpose until such appropri — 556 — ation and tax are authorized bj7 a vote by ballot of the electors of such town and county, as prescribed by sec. 1321, R. S. If the building of the bridge in the case at bar in the manner proposed, by the joint action of the town and county, comes within the provisions of said sections, properly construed, then the objection to the proceedings of the town would seem to be fatal to the action, and the demurrer to that part of the answer should have been overruled. In order to give a reasonable construction to these sections, and one which shall to some extent harmonize with the other provisions of law upon the subject of the construction, repair, and rebuilding of bridges, it will be necessary to look to the origin of the provisions, and, as near as we can, get at the intention of the legislature in enacting them. The substance of these sections was first enacted as a law of- the state by ch. 229, Laws of 1874. The act is entitled “An act to authorize counties, towns, cities, and villages to levy a tax for the building and aiding in building and construction of bridges in certain cases, and to issue bonds in aid thereof.” The only material difference between this act and the present provisions in secs. 1320,1321, R. S., is that the law of' 1874 authorized a tax of two per centum to be levied, or bonds for that amount to be issued; a,nd sec. 1320, R. S., limits the power to levy a tax for five mills on the dollar valuation, or to issue bonds for such purpose to the amount of two per centum of the valuation. The limitation of the tax to five mills on the valuation was made by sec. 2, ch. 252, Laws olf 1877; and the law of 1874, as amended by sec. 2, ch. 252, Laws of 1877, was transferred to the Revised Statutes of 1878 as secs. 1320, 1321. At the time of the passage of ch. 229, Laws of 1874, the county board had authority, without any vote of the electors, to levy a tax not exceeding $15,000 on the taxable property of the county, as a special county road tax, to be — 557 — expended as provided in that chapter; and the county board also had the power, under sec. 115, ch. 19, R. S. 1858, as amended by sec. 3, ch. 13, Laws of 1866 (1 Tay. Stats. 511-512), to appropriate any sum of money which in the judgment of the county board might seem advisable, to “ erect and repair any necessary bridge or bridges ” in the county, or to pay a part of the expenses of such erection or repair, without any vote of the electors on the. question. The legislature by sec. 1, ch. 252, Laws of 1877, limited the power of the count}7 board to levy taxes for building and repairing roads and bridges to the sum of $8,000, instead of $15,000, as provided by ch. 152, Laws of 1872. It will be noticed that the power granted by ch. 152, Laws of 1872, conferred the power to levy a tax of $15,000 for the purpose of building and repairing roads in the county, and that the amendment which limited the tax to $8,000 per year was for the purpose of building and repairing roads and bridges in the county. This ch. 252, Laws of 1877, by its second section, amended ch. 229, Laws of 1871, so as to limit the taxation under said chapter to five mills on the dollar valuation. At the time of the enactment of said ch. 229, Laws of 1871, and its amendment in 1877, the town had the power under sec. 2, ch. 15, R. S. 1858 (1 Tay. Stats. 319), to vote, at any legal town meeting, “ to raise money for the purpose of building roads and bridges.” No limitation was- fixed. By sec. 1, ch. 131, Laws of 1866 (1 Tay. Stats. 178), the supervisors of the town, whenever bridges needed repairs in the town and no sufficient amount of money had been provided for that purpose by the town, had the power to cause such bridges to be repaired, and for that purpose to spend not exceeding $500 in any one year, and place the amount in the next tax roll. By see. 113, oh. 19, R. S. 1858, as amended by sec. 1, ch. 63, Laws of 1867 (1 Tay. Stats. 511), the supervisors of the town were authorized to levyand collect a tax for the purpose of building and maintaining suitable and perma — 558 — nent bridges and causeways across any river, stream, creek, swamp, or marsh in the town, whenever they should deem it necessary for the public interest and convenience to rebuild, repair, or maintain such bridges or causeways; limiting the amount to be levied to $300 for any one bridge, and that but one such tax should be levied in any one year. The above-mentioned provisions of law in regard to the powers of towns and counties to appropriate money and levy taxes for the building and repair of bridges were none of them expressly repealed by said ch. 229, Laws of 1874, or by any amendment made thereto since its enactment; and all said provisions of law were substantially re-enacted in R. S. 1878, except sec. 113, ch. 19, R. S. 1858, as amended by sec. 1, ch. 63, Laws 1867. See subd. 1, sec. 776, as to the power of towns to vote taxes at town meetings for building and repairing roads and bridges, and sec. 1318, as to the authorit}»' of the supervisors to raise money for the rebuilding or repairing bridges; also sec. 1225, R. S., of the power of the supervisors to appropriate money raised for highway purposes for the repair of bridges in the town; sec. 1.108, of the power of the count y to levy taxes to keep in repair certain highways; and sec. 1319, of the power of the county board to raise taxes for the purpose of building or repairing in any town when the board shall think a bridge in any town necessary. Sec. 1320, R. S., is amended by sec. 3, ch. 345, Laws of 1885, so as to authorize two adjoining towns to unite in building or maintaining, or aiding in the building or maintaining, a bridge across a navigable or meandered stream, in the same manner that a town, county, or city was authorized to do by the original act of 1874. This law of 1874 should be construed so as to harmonize with the other laws then in force. It contains no repealing clause, and the legislature evidently considered that it did not conflict with the other laws in force upon the same subject. It was a law which was intended to confer a power — 559 — not before conferred on the county, town, city, or village, and to regulate the exercise of the power so conferred, and not a law intended to take away, restrict, or limit the powers theretofore conferred by law upon the county, town, city, or village. Thus construed, the law may be beneficial, and will not disturb or disarrange the other laws in existence conferring powers upon the counties, towns, cities, and villages for the construction, rebuilding, and repair of bridges. Thus construed, the law is clearly applicable to cases where the town, county, city, or village had not, before the passage of the act of 1874, the authority by law to build or maintain a bridge across a navigable or meandered stream, and is not therefore applicable to the case at bar. This construction of the act of 1874 is in accord with the title of the act as above quoted. The title shows that the act was intended to give authority to construct bridges in certain cases, and not to restrict the building of bridges when the power was already vested in the county or town. That the town of Rochester had the power to maintain and rebuild the bridge in question is clear from facts alleged in the petition for the writ of mandamus, and is as clearly admitted by the return to the writ by the respondent. The allegation in the petition for the writ is, after describing the point where the bridge is proposed to be built, “ that said town has a large amount of travel, and numerous diverging roads leading to it; that the bridge crossing the river at that point is a public necessity,, and has been from early times.” At another place it is alleged that the town had built in the same place an iron bridge in 1877, which had been swept away by a flood in 1881. The return of the respondent admits “ the location of the bridge, also the destruction of the bridges heretofore built at such place, and the necessity of rebuilding the same.” We must infer from these statements of the relator, the return of the respondent, and the fact that this bridge has been in existence — 560 — at the place indicated from the early settlement of the county, that its original construction was authorized by law; and looking into the early legislation of the territo^ we find an act which, by clear implication, authorized the construction of this bridge, if any special act of the legislature be necessary to confer authority upon the town. See act No. 27, Terr. Stats. 1838. This act legalizes and establishes a territorial'highway from Racine, on Lake Michigan, to the Mississippi river, passing through Mt. Pleasant, Rochester, on the Fox river, and Janesville, on the Rock. The bridge in question seems to have been a part of this highway, crossing the Fox river at Rochester, and was therefore authorized by law long before the act of 1874 was passed. Giving the construction to the act contended for by the appellant, no town, county, city, or village could expend a dollar to repair or rebuild or construct a bridge over a navigable or meandered stream or river without first submitting the question of such expenditure to a vote of the electors of the municipality, and a vote by ballot taken upon the question of such expenditure. It does not seem to us that such could have been the intention of the legislature. The same construction must be given to the act as re-enacted in the Revised Statutes that would have been given to it before it was embraced in such statutes and while it remained a separate and independent chapter of the law. See State ex rel. Att’y Gen. v. Messmore, 14 Wis. 177; Buckstaff v. Hanville, 14 Wis. 77, 78. We think it clear that the act of 1874 does not restrict the county, town, city, or village from rebuilding or repairing a bridge which the county, town, city, or village had legal authority to rebuild or repair previous to the enactment of ch. 229, Laws of 1874, and therefore is no bar to this proceeding on the part of the relator. Whether the general, and apparently absolute, power — 561 — given to the town and county jointly, under sec. 1319, R. S., as amended bjr ch. 345, Laws of 1885, to construct certain bridges, is to be limited in any case by the restrictions in sees. 1320, 1321 as amended, it is unnecessary to decide in this case; nor whether a town, county, city, or village, having once constructed a bridge under the provisions of said secs. 1320, 1321, may thereafter appropriate money and levy taxes to rebuild or repair the same without resorting to the proceedings prescribed by said sec. 1321, R. S., as amended. By the Court.— The order of the circuit court appealed from is affirmed, and the case is remitted to the circuit court for further proceedings.