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

interest on the same, $660; bridge tax, $1,200; incidentals, $2,000; school fund for all purposes, $8,996.50; borrowed money, $2,500. That said taxes were collected after December 17, 1894, and the said sum of $1,500 above mentioned, and $660 for interest on the same, was paid to the state treasurer in February, 1895, and a further payment on the said bonds of $1,500 principal, and annual interest for the year ending November 12, 1895, was made on the day last named.

(7) That the board of school directors of the town of Rock Falls, Lincoln county, borrowed from the state, May 17, 1889, $6,665, to be repaid in annual instalments of $666.50 each, payable February 1st of each year, with interest at six per cent. per annum; and that December 17, 1894, there was unpaid on said indebtedness the sum of $2,666 of principal, with interest from May 17, 1894, and no more; and that $666.50 of principal and one year's interest became due February 1, 1895, prior to the commencement of this action. That, by request of the officers or agents of the board of school directors of Rock Falls, the county clerk of Lincoln county each year certified to the city clerk of the city of Tomahawk (the territory of which was taken from the town of Rock Falls) the amount of the state tax levied by the state of Wisconsin in the years 1892, 1893, and 1894, and certified by the secretary of state to the said county clerk, to pay the instalments of said debt and interest which became due February 1, 1893, February 1, 1894, and February 1, 1895, and taxes had been levied on the taxable property of the city of Tomahawk for the purpose of paying a proportion of said indebtedness. These, with other facts, were relied on as tending to show the assumption of a certain proportion of said debt by said city.

(8) That on November 23, 1894, the city borrowed of W. H. and J. W. Bradley $2,500, to be repaid with interest at seven per cent. within ninety days, and a promissory note therefor had been given by the proper authorities of the

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

city, and the item of $2,500 for borrowed money, in the tax levy already mentioned, was for the purpose of repaying said loan, which in fact was paid February 21, 1895.

(9) That on the 28th of November, 1894, the city was indebted to the Rice River Lumber Company in the sum of $175, for lumber to be used by the said city in repairing its streets, but this bill was paid January 21, 1895, and the city had at all times sufficient funds in its possession to pay the

same.

(10) That on December 3, 1894, the common council levied on the taxable property of the city, for state and county taxes, the amount of $5,420.91, which was collected and paid to the county treasurer of Lincoln county in March and April, 1895.

(11) That in December, 1894, and prior to the 17th day of said month, the city had entered into a contract with S. M. Hewitt & Co. and the town of Rock Falls to build a bridge across the Wisconsin river, between the city of Tomahawk and the said town of Rock Falls, and that the city should pay for building said bridge, as its share, the sum of $1,200. That Hewitt & Co. entered upon the performance of said contract prior to the 17th day of December, and completed the same prior to the commencement of this proceeding; and the city paid said sum to Hewitt & Co., in February, 1895, from a tax levy for the payment of that sum December 3, 1894.

(12) That the city had entered into two contracts with one Garland for the extension of the waterworks system of the city, one made July 23, 1894, and the other September 25th of the same year; and that they were performed about the 11th day of December, 1894. That on the 17th of December, 1894, prior to the filing of the petition signed by resident taxpayers, the city paid to said Garland the balance due him under said contracts, and had at all times on hand funds available for that purpose, sufficient to pay all amounts

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

to accrue to him under said contracts as the same became due.

(13) That on December 11, 1894, the common council appropriated, out of funds then in the treasury, the sum of $400 for the erection of a pesthouse; and on December 29, 1894, city orders to the amount of $400 were issued to certain contractors who had been employed by said committee to construct said pesthouse, said contractors having commenced work on the same, December 14, 1894.

(14) That in the summer of 1894, one Sykes prepared plans and specifications for waterworks extension, for which he filed a bill for $64, which was disputed, but it was compromised January 1, 1895, and paid at the sum of $50; but the city had at all times on hand sufficient funds available to pay such demand.

(15) That prior to the 16th of November, 1894, the city contracted for the services of certain teachers in the city schools, by which they were to work at a stated price per month, the contract being good from month to month, and for no greater period; and under said contracts there became due to the teachers, December 21st, wages for the month ending on said day in the aggregate of $620, and on the same day said sums were paid to them by said city; the amount earned up to the 17th day of said month being $513.39. All the wages of teachers prior to said month had been paid as the same became due from month to month, there having been sufficient money in the treasury applicable to that purpose to pay them as the same became due.

It was further found that there had not been any vote of the electors or resident taxpayers of the city for the proposition to grant aid to the relator for the purposes mentioned in the petition, nor any vote whatever to issue bonds or subscribe for stock of the relator for that purpose, except as stated in said petition and acceptance by the taxpayers; that the common council never voted to accept said propo

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

sition or subscribe for the capital stock of the relator, nor did it ever in any manner "authorize or direct the issue of bonds to the relator, in any sum whatever, for any purpose, or for the creation of any indebtedness against the city, by reason of the proceedings had and taken by the relator and the resident taxpayers, as before stated."

For the appellant there were briefs by Curtis & Reid, and oral argument by Geo. Curtis, Jr., and A. H. Reid.

For the respondent there was a brief by Henry C. Hetzel, Brown & Pradt, and James O'Leary, city attorney, and oral argument by Mr. Hetzel and Mr. Neal Brown. They contended, inter alia, that a charter or special act passed subsequent to a general law repeals the latter so far as it is in conflict or inconsistent with it. Dillon, Mun. Corp. (4th ed.), § 88; 23 Am. & Eng. Ency. of Law, 422; Id. 430, and cases cited in note 4; Isham v. Bannington Iron Co. 19 Vt. 240; State v. Clarke, 14 Am. Rep. 471; State v. De Bar, 58 Mo. 395; State v. Binder, 38 id. 451; Palmer v. State, 2 Oreg. 66; Tierney v. Dodge, 9 Minn. 166; Richardson v. Sheldon, 1 Pin. 624; Titcomb v. Union F. & M. Ins. Co. 8 Mass. 326; St. Johnsbury v. Thompson, 59 Am. Rep. 731; Excelsior Petroleum Co. v. Lacey, 63 N. Y. 422; In re Snell, 58 Vt. 207; Van Denburgh v. Greenbush, 66 N. Y. 1; Gowen v. Harley, 6 C. C. A. 190; State v. Stoll, 17 Wall. 425. The legislative power in municipalities cannot be delegated to any other authority. It must be exercised by the municipality, either through the action of the whole body of electors, or through officers representing them. Slinger v. Henneman, 38 Wis. 504; State ex rel. Att'y Gen. v. O'Neill, 24 id. 149; Post v. Pulaski Co. 49 Fed. Rep. 628; Mills v. Charleton, 29 Wis. 400; People ex rel. McLean v. Flagg, 11 Am. L. Reg. (N. S.), 80, note; People ex rel. McCagg v. Chicago, 51 Ill. 17, 2 Am. Rep. 278; People ex rel. Board of Park Comm'rs v. Common Council of Detroit, 28 Mich. 228, 15 Am. Rep. 202; People ex rel. D., W. & P. R. Co. v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480;

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

Atkins v. Randolph, 31 Vt. 226; Harrington v. Plainview. 27 Minn. 224; Plainview v. W. R. Co. 36 id. 505.

PINNEY, J. 1. The validity of subscriptions to the stock of railroad companies, and the issue of bonds in payment therefor, by towns, cities, and counties, when authorized by law, has in this state long been settled (Phillips v. Albany, 28 Wis. 357), and that it is not necessary that the question of subscribing for stock and issuing such bonds be submitted to a vote of the qualified electors of the town, city, or county. The legislature may confer directly the necessary authority, for such purposes, on the proper town, city, or county authorities to represent and act for the municipal corporation or organization. Thompson v. Lee Co. 3 Wall. 327; Railroad Co. v. Otoe Co. 16 Wall. 677. A proposition submitted on behalf of the railroad company, and properly accepted on behalf of the municipality, as by a vote of its electors, becomes a contract mutually binding (Bound v. W. C. R. Co. 45 Wis. 543; Platteville v. G. & S. W. R. Co. 43 Wis. 493); and the municipal authorities may be compelled to issue the bonds if the contract has been performed on the part of the railway company (State ex rel. G. B. & M. R. Co. v. Jennings, 48 Wis. 549).

It is contended, however, that the legislature could not lawfully provide that the assent of the municipality may be given by a majority of the signatures of the resident taxpayers, as specified in the statute, so as to bind it and render the contract obligatory on the city; that such consent could only be given by the body of electors, or through boards or officers elected by them according to law. The provision for giving the assent of the municipality by the signatures of a majority of the resident taxpayers has been in force for a period of nearly twenty-five years, and the question becomes extremely important, in consequence of the great interests depending upon it, rather than from any intrinsic

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