Bigelow v. Town of Washburn

BaRdeeN, J. The point is made that the amended complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege the filing of a claim with the town clerk to be laid before the town board of audit, as required by sec. 824, R. S. 1878. The objection is first raised in this court. No demurrer was filed to the complaint; no objection that was available to defendant was taken at the trial; and no plea in abatement was interposed. Under repeated decisions of this court, the failure to make timely objections in the manner indicated is an effectual waiver of the right to insist upon this objection. Jaquish v. Ithaca, 36 Wis. 108; Sheel v. Appleton, 49 Wis. 125; Collette v. Weed, 68 Wis. 428; Lombard v. McMillan, 95 Wis. 627. The objection made at the trial that the plaintiffs had an adequate remedy at law is equally unavailable. Such an objection must be taken by demurrer or answer on that ground, or it is waived. A demurrer ore tenus is not available. Meyer v. Garthwaite, 92 Wis. 571; Sweetser v. Silber, 87 Wis. 102. Even if this were not so, this would seem to be a proper case to invoke the rule that when a defendant in a bill in equity disenables himself, pending the suit, to comply with an order' for the specific relief sought, the court will retain jurisdiction, and grant such relief as the changed conditions seem to demand. See Leonard v. Rogan, 20 Wis. 540; Hopkins v. Gilman, 22 Wis. 476; Combs v. Scott, 76 Wis. 662; Cole v. Getzinger, 96 Wis. 559; Milkman v. Ordway, 106 Mass. 232. The court found that the items in the levy for “ railroad tax ” and “ interest on outstanding orders and bills ” were illegal and void. The first item was admittedly bad, under the ruling of this court in Keystone Lumber Co. v. Bayfield, 94 Wis. 491, as being a levy to pay bonds not yet issued. [557] The second item was included in the levy pursuant to a resolution of the town board to pay interest on all town qrders issued prior to December 15,1893, at six per cent., upon condition that the holders of the same would file with the clerk a, written guaranty that they would not put the orders into judgment. Town orders are not negotiable instruments. R. S. 1878, sec. 1675. A town is not liable for an order drawn on its treasurer until after demand and refusal of payment. Packard v. Bovina, 24 Wis. 382. Such orders do not bear interest in the absence of statute. 2 Beach, Pub. Corp. § 880; Snyder v. Bovaird, 122 Pa. St. 442. The proceeding adopted by the town board was in no sense an attempt to compromise town indebtedness. So far as the evidence in this case shows,' we are left in the dark as to whether the orders upon which interest was to be paid had ever been presented for payment, or whether the holders were threatening suit or not. Such being the state of the record, we hold that there was ■absolutely no authority on the part of the town board to make the levy in question, and the finding of the trial judge •was correct. Complaint is made that the levies for outstanding orders .and bills allowed -were illegal. The poverty of the evidence with reference to these items is significant. So little, in fact, appears with reference to these claims, that counsel are ■driven to say that, as to outstanding orders, they were either covered by the levy for the preceding year or were issued in excess of the levy. There is the same dearth of evidence relating to the levy for bills allowed. We are left to infer that these levies are void, because they happen to be unfortunately christened. Equity will not grant relief upon any ■such doubtful or uncertain basis. In absence of evidence to the contrary, the court is bound to presume that the orders and bills mentioned were legal obligations, and that it would not be inequitable for the town to pay them. ■ The decision >of this court in Hixon v. Oneida Co. 82 Wis. 515, and other [558] cases, substantially establish this doctrine, and there is absolutely no reason shown in this case why the plaintiff should not be bound by it. The same is true as to the levy for outstanding school Orders and highway orders. So far as we are advised by the evidence, all of these orders were valid, subsisting obligations of the town. We are bound to presume that they were issued by legal authority and upon a sufficient consideration, in absence of proof to the contrary. It follows, therefore, that the plaintiffs suffer no hardship in being compelled to bear their share of the burden thus imposed. Another ground of complaint arises from the manner in which the highway taxes were carried out on the roll by the clerk. At a special town meeting held July 17, 1895, it was voted to raise a five-mill tax for highway purposes for that year. The clerk computed the amount of such tax upon the assessed valuation of the property of the town for the year 1894, -which was $1,827,334, and carried it into the roll of 1895. The assessed valuation of the town for 1895 was $1,479,734; so that, upon the plan adopted by 'the clerk, upon the latter valuation the tax amounted to six and one-third mills. The town had theretofore voted to collect the highway taxes in money. The plan adopted by the clerk seems to have been in accord with the decision of this court in Hebard v. Ashland Co. 55 Wis. 145, -where it was said: “The statute evidently contemplates that such tax should be computed upon the basis of the valuation of the previous year. This kind of tax is required to be levied on or before the second Monday of May in each year, and the tax roll of that year has not yet been made, and the assessment has not yet been corrected and perfected by the board of review, which sits on the last Monday of June.” It is a fact quite notorious, and made manifest from the testimony herein, that town assessments vary largely from year to year (in this case nearly $400,000); and it seems very proper [559] to adopt a construction that will enable both the electors and the town board to know positively whether the amount voted for highway purposes is likely to exceed the limit fixed by R. S. 1878, sec. 1240. This disposes of the objections raised by both parties, and it follows therefrom that the decision of the trial judge was correct. By the Court.— The judgment of the circuit court is affirmed on both appeals.