Town of Humboldt v. Schoen

Vinje, J. It is quite evident that the resolution of the electors of the town providing that it should be .brought under the county and state drainage system, and that the town board should lay out the different districts and fix the number thereof, was not a proceeding had under ch. 54 of the Statutes of 1915, relating to town drains. But counsel for defendant contend that the procedure authorized by said chapter is merely cumulative and that the electors had the power, under the provisions of sec. 776, Stats. 1915, to provide for a drainage system and expend money therefor. The language of the section relied upon is as follows: “To vote to raise money for the repair and building of roads or bridges, or either; for the support of the poor and defraying all other charges and expenses of the town.” Sub. (1). Counsel is mistaken in the view that ch. 54 gives a cumulative' procedure. It is the exclusive way in which a system of town drains may lawfully be adopted. Except as otherwise provided by statute for specific drains, such as for highways under sec. 1236, Stats. 1915, the only authority given a town to provide or pay for a drainage system is that given by ch. 54. Neither does see. 776 contemplate the expenditure of town money for a drainage system. If the phrase “and defraying all other charges and expenses of the town” included that of a drainage system, then it might be held to include the expense of any other work or scheme which the officers of [544] the town might undertake. The phrase must he limited to mean only other lawful charges and expenses of the town. •Claim is also made that the pleader does not allege that the resolution was not in conformity with the provisions of ch. 54. The complaint alleges that the board, “without any lawful authority so to do,” entered into the pretended contracts for the work for which the money was paid. Besides, the court will take judicial notice of the contents of ch. 54. The contention that no facts showing damage are alleged is equally without merit. When facts showing an unlawful expenditure of the town’s money are pleaded, damage is sufficiently-made to appear. Milwaukee v. Binner, 158 Wis. 529, 149 N. W. 211. By the Gourt. — Order affirmed.