State ex rel. Ashland Water Co. v. Bardon

Dodge, J. No reason is apparent why this case is not ruled by the principles announced in Seegar v. Ashland, 101 Wis. 515, and the earlier cases therein referred to. It was there held that the nonaction of the council for sixty days after the presentation of a claim constitutes a disallowance of it; that such a disallowance is within the meaning of the section prohibiting the council from again considering or allowing such claim; that those provisions had the purpose, among others, of protecting the public treasury against the acts of public officers; and that the protection so accorded could not be waived by the common council. In the Seegar Case it was held that the action of the council, after the expiration of the sixty days, in disallowing the claim, was an entire nullity, the consideration thereof being prohibited by the charter; that upon such disallowance one remedy, and one only, is given to a claimant, and that is an appeal to the circuit court; and that “after such disallowance the council is prohibited, not only from allowing the claim, but from considering it. It can neither subject the treasury to a certain burden by a vote of allowance, nor, as claimed to be accomplished in this case, can it, by an express vote of disallowance, subject that treasury to the contingent burden which would result from an enlargement of the time for an appeal.” In the light of such construction of the charter provisions, we are constrained to hold that the claim of this relator became “disallowed by the council” June 1st. Thenceforward the public moneys in the treasury were shielded by the statute from any liability to such claim or claimant save only through the action of the circuit court invoked by appeal. The action of the common council there 300 after in voting allowance was prohibited by express law, and was a complete nullity. It neither conferred authority nor imposed any duty upon the mayor, clerk, comptroller, or treasurer to perform any of the acts commanded by the judgment of the circuit court. A further objection is urged by appellants, that the regular term for Iron county was not a special term for Ash-land county. This is predicated on the contention that the last paragraph of-sec. 24M, Stats. 1898, has relation only to the Seventeenth circuit, which immediately precedes it. Such construction is wholly unwarranted. The arrangement and the purpose of the whole section make perfectly plain that the final paragraph, like the opening one, applies to all circuits in the state, and constitutes every term in any county a special term for the whole circuit, unless otherwise ordered by the court. By the Court.— Judgment reversed, and cause remanded with directions to deny the writ prayed for.