Mueller v. Town of Cavour

Winslow, J. The amount which the town of Pelican Lake could legally spend for highway purposes during the year was limited to the amount which it could legally raise for that purpose by taxation. Webster v. Douglas Co. 102 Wis. 181; sec. 823, S. & B. Ann. Stats. So the question upon which the case must turn is whether the town was authorized to levy more than $1,000 tax for highway purposes in the year 1896. The claim of appellant is that because the town contained less than 500 inhabitants it could only raise a highway tax of $1,000, while the respondent’s contention is that because the town contained a territory of [602] more than two congressional townships it could raise by taxation for highways $2,000 and seven mills on the dollar-of its assessed valuation of property. The question is one of construction of the various statutes bearing on the subject, and these statutes will now be examined. Prior to the passage of ch. 293, Laws of 1895, the material statutory provisions on the subject were as follows: Sec. 776,. S. & 33. Ann. Stats., provided, among other things, that the electors, at the annual town meeting, should have power “to-vote to raise money for the repair of roads and bridges or either; for the support of the poor and for the defraying of all other proper charges and expenses of the town, subject, however, to the limitation as to the amount of highway taxes provided in section twelve hundred and forty.” Sec. 1240 of the same statute provided, in substance, that the supervisors should assess a poll tax for highway purposes on every adult male inhabitant, with certain exceptions, and proceeded as follows: “ The residue of the highway tax, to-an amount of not less than one nor more than seven mills on the dollar, shall be assessed on the valuation of real and personal property in each district, but the supervisors in the several towns of this state shall assess any amount of highway tax, additional to the amount above authorized, which shall be ordered to be assessed at the next preceding annual town meeting, not exceeding fifteen mills on the dollar of such valuation. But no town containing a population of less than 500 inhabitants shall hereafter levy or collect in any one year a highway tax of more than $1,000, including the-amount of money that may be voted at any special or general town meeting and the mill tax herein authorized to be levied by the supervisbrs. And no town having two congressional townships or more, shall levy or collect a tax exclusive of the mill tax hereinbefore authorized, for more than $2,000 in any one year.” Thus, it appears that the limitations provided in sec. 1240603 were by express words imported into sec. 776, and, so far as applicable, were as much a part of the last-named section as if written out at length therein. One of these limitations was a sweeping limitation that “ no town ” containing less than 500 inhabitants should have power to levy or collect a highway tax of more than $1,000 in any one year. While the law stood thus, it is difficult to see how it could be claimed that the $1,000 limitation did not apply to every town in the state continuing less than 500 inhabitants, just as its plain terms indicate, and regardless of the question of extent of territory. It is true that there was a subsequent limitation to the effect that no town having two or more congressional townships should levy a highway tax exclusive of the mill tax of more than $2,000 in any one year, but this ivas an entirely independent provision. It was not in the form of a proviso or exception to the previous limitation. A little reflection makes its object manifest. In a town containing great territory, and consequently a very large amount of “assessable property, owned perhaps by nonresidents, but also containing only a few more than 500 inhabitants, a highway tax of fifteen mills would raise an excessive amount, and consequently an additional limitation, not, however, so drastic as the previous limitation upon towns of less than 500 inhabitants, was necessary, and this additional or cumulative limitation was provided for such towns. This seems clearly to be the true meaning and intent of the provisions above noted, and such was practically the construction placed upon them in the case of C. N. Nelson Lumber Co. v. Loraine (C. C.), 24 Fed. Rep. 456. The case of Sage v. Fifield, 68 Wis. 546, is cited as opposed to this construction, but the question now being considered was not raised or decided in that case. There was no question there involved as to the powers of a town containing less than 500 inhabitants. But even conceding this to be the proper construction of the laws as they stood prior to 1895, it is claimed that the $1,000 [604] limitation was, in effect, removed, by the passage of ch. 293 of the laws of that year. This last-named chapter amended sec. 176, above named, by striking out all after the word “town,” and inserting instead the words, “provided, however, that the total taxes levied in any town in this state for any one year for all purposes including taxes for schools whether under the district or township system . . . shall not exceed three per centum of the total assessed valuation of such town. , . .” Thus the direct reiteration of the limitations in sec. 1240 was eliminated from sec. 776, but there was no attempt there nor since to repeal or materially change the provisions of sec. 1240. The last-named section was and is the section intended to govern the whole subject of highway taxes in towns. It was and is a law directed to this particular subject, and, under familiar principles, must control general legislation, even in cases of apparent conflict. But there was no conflict. The legislature evidently desired to place a limitation upon the power of taxation by a town for all purposes, and the natural place to insert it was manifestly in the body of sec. 776. To place the general limitation at the end of the section in addition to the highway limitation would be clumsy, to say the least, and, such last-named limitation being specially provided elsewhere, it was deemed unnecessary to retain it here. But, if any further argument were needed to show that the intent of the legislature was not to repeal or affect the limitations of sec. 1240, it would be found in ch. 385, Laws of 1895, approved on the same day as ch. 293, in which it is enacted, that “the amount of highway taxes that may be assessed in any town for any one year and the manner of making such assessment shall remain the same as now provided for by sec. 1240, R. S., and the amendments thereto. . . .” The conclusion is inevitable that the limitations of sec. 1240 remain unaffected by the change in sec. 776, and therefore that the town of Pelican Lake, being a town of less than 500 inhabitants, could [605] raise no more than $1,000 for highway purposes in the year 1S96. The town orders, therefore, which were issued after that sum had been expended were void. Interest was allowed by the trial court on all orders from the time of the filing of the plaintiff’s claim with the town clerk. This was error. It is a general principle of law that town -orders do not bear interest, in the absence of statute to that effect. Bigelow v. Washburn, 98 Wis. 553. It is provided by statute that county orders shall bear no interest. Sec. 686, Stats. 1898. Under this statute, it has been held that no interest could be recovered on county orders, even-after presentment for payment. Alexander v. Oneida Co. 76 Wis. 56. In the case of a town order, the inhibition against the running of interest is by rule of common law; in the case of a county order, it is by statute; but the effect is manifestly the same. The legislature has recognized the necessity of legislative action in order to justify the payment of interest upon a town order by the passage of ch. 325 of the laws of 1899, authorizing the electors of a town, by vote, to declare whether town orders shall bear interest,, and at what rate. By the Gourt.— Judgment reversed, and action remanded with directions to enter judgment for the plaintiff for the amount of the orders which were stipulated to be valid, without interest. Cassoday, C. J., took no part.