Gertz v. Town of Vaughn

EoseNbeeRy, J. The fundamental question in this case may be stated thus: Did the adoption of tbe resolution by the electors at the annual town meeting of April, 1914, confer upon the town board of the town of Vaughn the authority to grade and pave streets in the unincorporated village of Hurley and levy a tax therefor under secs. 905 and 906, Stats. ? It is conceded that the resolution did confer such power if there is no “conflict” within the meaning of sub. (13), sec. 716, Stats., which is as follows: “All powers relating to villages and conferred upon village boards by the provisions of chapter 40 of the Statutes, excepting those, the exercise of which would conflict with the statutes relating to towns and town boards, are conferred upon towns which contain a population of not less than five hundred and having therein one or more unincorporated villages, and may be exercised by the board of such town when directed by resolution of the electors thereof at an annual town meeting.” The laws relating to the repair and building of highways in towns may be briefly stated as follows: Sec. 776, Stats. 1915, authorizes the qualified electors of each town at the annual town meeting to vote to raise money for the repair and building of roads and bridges, or either, for the support of the poor and defraying of other charges and expenses of the town, provided that the total tax levied in any town for any one year for all town purposes, exclusive of school taxes and liabilities theretofore lawfully incurred, shall not exceed in the' whole one per centum of the total assessed valuation of such town for the preceding year, unless a larger sum is needed for the building or repairing of highways or bridges, [564] in wbieb case the electors may vote and the proper authorities may levy not to exceed one fourth of one per centum in addition to the aforesaid one per centum. In addition to the amounts provided by the electors, the supervisors of each town (sec. 1240) may assess on the valuation of the real and personal property in each town an amount not less than one nor more than seven mills on the dollar; provided that in addition to such amount there may be assessed, any additional amount which shall have been authorized by the last preceding annual town meeting, not exceeding in all ten mills on the dollar of such valuation; provided further that no town containing less than 500 inhabitants shall levy or collect in any year a highway tax of more than $2,000, including the amount voted by any town meeting and the amount levied by the supervisors; and that no town containing two Congressional townships or more and more than 500 inhabitants shall levy or collect a highway tax, exclusive of that first authorized by the section, of more, than $3,000. Under the statutes relating to villages a village board has power (sec. 898) to lay out, open, change, widen, or extend roads, streets, lanes, alleys, sewers, parks, squares, or other public grounds, and to grade, improve, repair, or discontinue the same or any part thereof, or build and repair any bridges thereon, etc., and to levy and provide for the collection of taxes and assessments; (sec. 905) when the county contains less than 150,000 inhabitants, to cause any street or any part of any street not less than sixteen rods in length to be graded, paved, macadamized, or otherwise improved, including the construction of curbs and gutters, and for the purpose of so improving any street the village board may levy and causé to be collected upon the lots, tracts, or parcels of ground fronting or abutting upon such street or part of the street improved, and upon the owners thereof, a tax sufficient to pay the expense of constructing such improvement as ordered [565] opposite such property to the center of the street, or sucb proportion thereof, not less than half, as they shall deem justly assessable to such property, if they shall think the whole ought not to be assessed, in which case the remainder shall be paid from the village treasury, and if the tax so levied shall prove insufficient to pay the cost or proportion thereof assessed against such property, the village board may levy an additional tax thereon to make good such deficiency. The manner in which the tax shall be assessed and collected is prescribed by sec. 906. Sec. 914 provides that the village board shall determine the amount of corporation tax to be levied and assessed on the taxable property in the village for each year, which shall not exceed in any one year two per centum of the assessed valuation of such property. Before any tax for any specified purpose exceeding one per centum of said valuation can be levied the matter must be submitted to the village electors. See. 914a provides that the village board shall, at the time of determining the amount of the village taxes to be levied and raised in such village for the current year, determine the amount, if any, of highway-tax to be levied and collected in such village for the current year, which shall not exceed in any one year one tenth of one per centum of the assessed valuation of such property. Does the exercise of the powers relating to villages and conferred upon village boards in the matter of the improvement and repair of highways conflict with the powers relating to towns and town boards ? We think it does, in a vital and substantial way. If a town board, exercising the powers conferred upon a village board by statute, may cause one half of the cost of paving to be paid out of the town treasury, they can, as in this case, by improving a village street, exhaust the power of the town to raise money for highway purposes, and so deprive the electors of the town of the power to raise money for the repair and building of roads and bridges. [566] This court, having under consideration the question of whether or not a town had power to raise money by general taxation to build sidewalks and light public streets in an unincorporated village within its boundaries, said: “That the legislature did not purpose creating any such power as that contended for, is quite plainly indicated by the fact that it adopted a complete system in relation to the subject, by resorting solely to local taxation for the particular local purpose, in harmony with the general scheme of town government. Such system is found in secs. 1243, 1346a-, 1346bj and 819, Stats. 1898. In so industriously providing for such local matters, it is the opinion of the court that it was intended to make the plan exclusive.” McGowan v. Paul, 141 Wis. 388, 391, 123 N. W. 253. The same may be said of the plan of the laws governing the construction and repair of highways in villages. In order that there be a conflict it is not necessary that the plans oppose each other at every point. It is sufficient if they are fundamentally inconsistent. It may be contended that there is no conflict if only that part of sec. 905 which authorizes the village board to assess the entire cost of improvements to abutting property owners be considered as adopted. The difficulty with that contention is that the statute does not provide for two things but for one thing. If the powers enumerated in secs. 905 and 906 are exercised they conflict with the powers conferred upon towns, and the powers enumerated in sees. 905 and 906 are therefore not conferred upon towns by the adoption of a resolution under sub. (13), sec. 176, Stats. It makes no difference that in a particular instance the town board might not fully exercise the powers enumerated in said sections. The question is not whether a town board can exercise a part of the powers enumerated in such a way that there would be no conflict in a particular instance. The question is, Do the powers, if exercised, conflict ? If they do, then the power is not conferred either in whole or in part. If the statute conferred upon village boards the authority to cause improvements to be made of the character specified and [567] required the whole cost thereof to be assessed against abutting property owners, a different question would be presented. The town board could not under such a law, by improving village streets, exhaust the power of the town to raise money for highway purposes, and the exercise of one power would not then conflict with another. As the law stood in 1914 there was a clear conflict. Therefore, upon the facts found, the town board in this case was without authority or jurisdiction in the premises, and the principle of estoppel does not apply, as has been held by successive decisions of this court. McGowan v. Paul, 141 Wis. 388, 123 N. W. 253; Menasha W. W. Co. v. Winter, 159 Wis. 437, 150 N. W. 526. The conclusion reached renders unnecessary the consideration of the remaining questions which were argued. By the Gourt. — Judgment affirmed.