Bay Land & Improvement Co. v. Town of Washburn

Cassoday, J. It is claimed that the temporary injunction granted by the court commissioner suspended the general and ordinary business of the corporation, and therefore was made in violation of sec. 2780, E. S., and hence was properly dissolved. The learned trial court seems to have dissolved the injunction on that ground, as the order expressly states that it was made “ without prejudice to a new application.” The section cited declares that “ an injunction to suspend the general and ordinary business of a corporation shall not be granted except by the court or presiding judge thereof,” etc. The theory of this action is that the town had entered upon the work of laying out and constructing a very expensive highway, without any funds in the treasury, or any legal authority to incur such indebtedness. If such are the facts, it is a matter in which the tax-payers of the town are deeply interested, and manifestly have a remedy. Secs. 823,1240, S. & B. Ann. Stats.; Peck v. School Dist. 21 Wis. 516; Lawson v. Schnellen, 33 Wis. 288; Nevil v. Clifford, 55 Wis. 161; S. C. 63 Wis. 435; Willard v. Comstock, 58 Wis. 565. But we are constrained to hold that the granting of such an injunction is not the suspension of the general and ordinary business of a corporation, within the meaning of sec. 2780, E. S. Thus, it has been held that an injunction to restrain a municipality from executing and delivering tax deeds is not within the prohibition of that section, and hence may be granted by a court commissioner. Doty v. Village of Menasha, 14 Wis. 75. As the trial court did not pass upon the merits, and as the affidavits seem to be open to different constructions, we leave the merits for the determination of the trial court, should application be made thereto for that purpose. By the Court.—The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.