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Silverthorn vs. Wylie.

thereon accordingly the defendant, as such administrator, brings this appeal.

The several findings of fact appear to be each and all supported by the evidence. The fact that the lands described in the contract are included in the executor's inventory of the estate, with the recital that “Alex. R. McDonald owns one half interest as per contract with deceased,as found, makes it very manifest that there is no substantial merit to the defense. The assignments of McDonald to the plaintiff are both in writing, and purport to be upon a good and adequate consideration. But, even if the assignments were without such consideration, yet it would be no reason for withholding payment of the share of the proceeds which, by the terms of the contract, were to go to McDonald.

The contention that the contract to pay McDonald such share of the proceeds was without consideration is without foundation. “A promise to pay for past services implies that they were rendered upon previous request, and such services are good consideration for the promise.Jilson v. Gilbert, 26 Wis. 637; Lampleigh v. Barthwaite, Hob. 239, side page 105b; Hatch v. Purcell, 21 N. H. 544; Wilson v. Edmonds, 24 N. H. 517; Paul v. Stackhouse, 38 Pa. St. 302. The facts found bring the case within the principle of law stated. Certainly we are not to presume that McDonald expended his time and money and made the selections mentioned, and then voluntarily bestowed the entire beneficial results upon Daniel B. Wylie gratuitously and without any consideration whatever. Daniel B. Wylie was clearly liable for the services which McDonald had rendered for him, and of which he received the benefit. We find no error in the record.

By the Court.— The judgment of the circuit court is affirmed.

State ex rel. Marinette, T. & W. R. Co. vs. Tomahawk Common Council

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THE STATE EX REL. MARINETTE, TOMAHAWK & WESTERN RAIL

WAY COMPANY, Appellant, vs. THE COMMON COUNCIL OF
THE CITY OF TOMAHAWK, Respondent.

105 2013

March 22 - April 30, 1897.

Municipal corporations: Aid to railroads: Consent, how given: Consti

tutional law: Tomahawk city charter: Repeal of general law by
implication: Limit of indebtedness: When obligation accrues: As-
sessment: Division of school district: Apportionment of debts.

1. The provision of sec. 946, R. S., that the acceptance by a munici.

pality of a proposition for subscription to the stock of a railroad
company and the issuance of bonds in payment thereof may be
given by the signatures of a majority of the resident taxpayers,
without a submission of the question to the electors, is valid, and
such consent when so given creates a contract binding upon the

municipality.
2. Sec. 3, subch. IX, of the charter of the city of Tomahawk (ch. 58,

Laws of 1891) provides that “no debt shall be contracted against
the city : unless the same shall be authorized by a majority
of all the members-elect of the common council," and that "the
common council shall not, in any case, or under any pretext, or
for any purpose whatever, contract debts or liabilities of any kind,
name, or nature, exceeding the amount which it is authorized by
the charter to levy for the current year.” Secs. 12, 15, subch. V,
provide that the council shall manage and regulate the finances
and levy all taxes. Sec. 11, subch. IV, provides that, in addition
to the amount of taxes for general city purposes, special taxes may
be levied for certain purposes “of public utility,” provided such
special taxes shall first have been recommended by the council and
afterwards approved by a vote of the people. Sec. 19, subch. XIII,
authorizes the council to issue bonds of the city, not to exceed five
per cent. of the assessed valuation, for such public improvements
as shall be authorized by ordinance of the council adopted by a
vote of three fourths of its members, the issuance of such bonds to
be approved by a vote of the people. Held, that these provisions,
construed together, are not at variance with, and do not by impli.
cation repeal, the general law relating to municipal aid to railroads
(secs. 945 et seq., R. S.),- sec. 3 of subch. IX being applicable only
to debts for ordinary municipal purposes, and sec. 19, subch. XIII,
being an affirmative provision merely, which does not prevent the

State ex rel. Marinette, T. & W. R. Co. vs. Tomahawk Common Council.

city from exchanging its bonds for stock of a railroad company up to the prescribed limit, when a valid contract therefor is made under the general law. Perrin v. New London, 67 Wis. 416, dis

tinguished. 3. Although the amendment to sec. 3, art. XI, Const., limited the

amount of indebtedness which a city might incur, yet the power and duty of the legislature remained to impose other restrictions or regulations; but the sufficiency of such restrictions being a question within the discretion of the legislature, its action in the

premises is not reviewable by the courts. 4. Under sec. 948, R. S. (providing that no corporate bonds issued in

exchange for railroad stock “shall be delivered, or be valid if delivered,” until the road shall bave been actually completed and in operation), no indebtedness on the part of the municipality can be said to have been incurred, within the meaning of sec. 3, art. XI, Const. (prohibiting municipalities from becoming indebted in any manner in excess of five per cent. of the value of the taxable property therein, “to be ascertained by the last assessment for state and county taxes previous to the incurring of such indebted

ness”), until the road is completed in the prescribed manner. 5. The assessment intended as the basis of determining whether a

municipal indebtedness is in excess of the five per cent. limit imposed by said sec. 3, art. XI, Const., is the last assessment of the municipality as equalized by the local board of review for the

purposes of general taxation. 6. In determining whether a proposed issue of municipal bonds is in

excess of the constitutional limit of indebtedness, all forms of indebtedness must be included except warrants for money actually in the treasury and contracts for ordinary expenses within the

current revenue. 77. Where a city before its incorporation formed part of a school dis

trict, no part of the indebtedness of such district should be reckoned as an obligation of the city, in determining whether its constitutional limit of indebtedness has been reached, unless such indebtedness is shown to have been legally apportioned between the city and the district.

APPEAL from a judgment of the circuit court for Lincoln county: Chas. V. BARDEEN, Circuit Judge. Reversed.

This was a proceeding to obtain a peremptory writ of mandamus to compel the common council of the city of Tomahawk to cause subscription to be made, on behalf of

State ex rel. Marinette, T. & W. R. Co. vs. Tomahawk Common Council.

said city, on the books of the said railway company, for shares of the capital stock thereof, equal to $9,000, and to pass and enact an ordinance or resolution directing and requiring the mayor and city clerk to sign, seal, and issue on bebalf of said city, and deposit in escrow with J. W. Ladd, cashier, etc., as trustee, municipal bonds of said city of Tomahawk in a like sum, running to the said railway company as payee, bearing interest at the rate of six per cent. per annum, etc., and directing said Ladd to deliver said bonds to the relator

company upon the finishing and completing of its railroad from said city to a point in section 34, township 35 N., of range 8 E., and the passage of cars over the same on or before December 1, 1895, upon a contemporaneous delivery to said city of such certificates of shares of the capital stock of said railway company; and, further, that said common council, prior thereto, enact an ordinance or resolution directing an annual levy of taxes in said city, in addition to all other taxes, sufficient to pay the interest annually growing due on said bonds, and also to pay and discharge the principal thereof by the time the same shall be due, according to their terms. A return was made to the alternative writ, and the issue was tried before the court, upon which there was a finding of facts, not excepted to, and, as a conclusion of law, that the relator had no right to the relief asked. Judgment was given dismissing the proceeding, with costs, from wbich, when perfected, the relator appealed.

The relator founds its right to relief upon proceedings under the general law in relation to issuing corporate bonds for the purpose of paying for an authorized subscription to the stock of the railroad company. R. S. sec. 942, and following sections. The relator submitted a proposition to the clerk of the city, pursuant to sec. 945, which was filed October 13, 1894. The formalities required by sec. 946 were observed, and December 17, 1894, the relator filed with the common council a petition, signed by the requisite number

State ex rel. Marinette, T. & W. R. Co. vs. Tomahawk Common Council,

of resident taxpayers. At the time of the commencement of the present proceedings, the relator had commenced, and during their pendency had seasonably completed, the road. On the 21st day of January, 1895, the relator requested the common council to cause subscription to be made for stock to fulfill the contract so made, and to execute and issue the bonds, etc., in order to carry it out, and tendered full performance of such contract on its part. Defendant neglected and refused to issue the bonds, and assigned as reasons for so doing: First, because such bonds could not be lawfully issued, under the charter of the city of Tomahawk, incorpo rated March 25, 1891 (ch. 58, Laws of 1891); second, because, with the existing indebtedness of the city, the proposed bond issue would make such indebtedness exceed the constitutional five per cent. limit; third, because the law authorizing the issue of the bonds is unconstitutional.

It was found by the court:

(5) That the assessed valuation of the taxable property of the city for the year 1894, fixed by the board of review of the city, was the sum of $144,549.50, and that the value of the taxable property of said city, as fixed and determined by the county board of Lincoln county, at its meeting November 15, 1894, pursuant to sec. 1073, R. S., was $485,545.

(6) That on the 12th of November, 1891, the city issued its municipal bonds, known as “waterworks bonds,” in the sum of $15,500, bearing interest at the rate of six per cent. per annum, which were purchased and held by the state of Wisconsin at their par value. That there was unpaid on said bonds, between October 13 and December 17, 1894, the sum of $12,500, principal, and interest thereon at the rate aforesaid from November 12, 1893; and that $1,500 of the principal and one year's interest on the total unpaid principal became due November 12, 1894. That December 3, 1894, the common council made the following tax levies, among others, for the then ensuing year: Waterworks bonds, $1,500;

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