O'Loughlin v. Dorn

Eschweiler, J. The carrying of the motion at the annual meeting in July, 1912, in the words “that if we can get out of paying the $450 to J. G. Schneider we will,” cannot be held such a definite, formal proceeding on the part of the electors of the school district as would amount to a repudiation of the obligation claimed to be due as a balance on the contract for the building of the schoolhouse, as is urged by appellant. However devoutly those then present may have wished for such a consummation, they fell short in any ful-filment thereof, and their declaration, therefore, was ineffectual either as a repudiation of the obligation or as a bar to a later recognition the'reof. Appellant also alleges that the judgment which is described by the ninth finding of fact as follows: “That thereafter an action was commenced by one L. F. Kurth to restrain the levy of said tax of $477, and on the 7th day of February, 1913, a judgment was rendered and entered in the circuit court for Buffalo county restraining the levy of said tax for the reason that it exceeded the amount which could be raised by a tax levy in one year by said district,” is binding upon defendants and conclusive in favor of plaintiff upon the facts here involved. There is no dispute but that the sum referred to in that Kurth action was intended to be used to extinguish the same obligation which is the subject matter of this action, namely, the balance of $450 on the construction of the schoolhouse, with the then accrued interest. Although the judgment, [210] which was upon stipulation, in that action was offered in evidence herein and is in the bill of exceptions, and from its form as it there appears it might give some color to appellant’s contention, yet as no further portions of the record in that other action are before us, we are bound by the findings of the trial court, as to what was determined by that action, for we must presume the findings herein were based upon records before him and not before us, .especially as there was no exception taken to such finding by appellant. Giving effect to this finding as to the judgment of February 13, 1913, it must be held to have determined nothing more than that the attempted levy of a tax for $477 in August, 1912, was invalid because in excess of the amount which could be lawfully raised in said district in one year. Such a judgment in February, 1913, could not affect proceedings based upon that which is done, or attempted to be done, in June, 1915. Nor are the proceedings of this later date a revival or renewal of the proceedings of August, 1912, and consequently not a violation of any order restraining proceedings to levy a tax in 1912. Under sec. 40.09, Stats., the electors of the school district in meeting assembled shall have the power to vote such tax as the meeting shall deem sufficient to build a schoolhouse. Under sec. 40.26 the school district board shall, when lawfully directed by the electors, build a schoolhouse “out of the funds provided for that purpose.” Under these provisions of the statutes, when the school district decided to build, the maximum cost for such building was fixed at the amount of the fund then and there provided, viz. the $1,700. The school board had no authority or power to bind the school district in excess of that amount. Nevil v. Clifford, 63 Wis. 435, 443, 24 N. W. 65; 35 Cyc. 951, 952; Knaack v. School Tp. 179 Iowa, 410, 161 N. W. 446; School Dist. v. Brown, 2 Kan. App. 309, 43 Pac. 102; School Dist. v. Western T. Co. 5 Wyo. 185, 38 Pac. 122; Capital Bank v. School Dist. 1 N. Dak. 479, 48 N. W. 363. [211] The same rule seems to be, impliedly at least, recognized in the case of State ex rel. Gilbert v. Philipp, 163 Wis. 613, 158 N. W. 331. No question has been raised by appellant, nor can we find a foundation for any such in the record before us, but that the school district in July and August. 1911, had the lawful power to vote and provide a tax for a sum equal to the $2,250, the contract price of the building, if they had at that time so chosen to do instead of fixing the amount at the $1,700 which they did, without violating the provision of sec. 3, art. XI, Const., as it stood at the time, which limited the aggregate indebtedness of any such corporation to five per centum on the value of the taxable property therein. The burden, of course, would be upon the plaintiff in this case to have shown that such sum would have been in excess of such constitutional limitation. Montpelier S. B. & T. Co. v. School Dist. 115 Wis. 622, 92 N. W. 439. Assuming, therefore, the power in 1911, it was within the power of the electors of the school district in 1915 to ratify, approve, and make their own that which they might have lawfully done in 1911, namely, to fix. and raise the amount of $2,250 for such school building instead of the $1,700, and when, as here, with a complete knowledge of what had been done, a formal acceptance of the building and its use by the school district, they lawfully ratified, approved, and confirmed the acts that might have lawfully been done in the first instance and thus created an obligation for the notes executed in June, 1915, as was found by the trial court. Thomson v. Elton, 109 Wis. 589, 85 N. W. 425; McGillivray v. Joint School Dist. 112 Wis. 354, 88 N. W. 310; Monaghan v. School Dist. 38 Wis. 100. The distinction is clear between this case and those in which the act attempted to be ratified would have been absolutely beyond the power of the same body to do in the first instance and therefore void and incapable of ratification, as [212] in Balch v. Beach, 119 Wis. 77, 95 N. W. 132; Glidden State Bank v. School Dist. 143 Wis. 617, 128 N. W. 285. Other questions raised by the appellant we do not deem it necessary to discuss. By the Court. — Judgment affirmed.