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

“last assessment for state and county taxes previous to the incurring of the indebtedness" is intended the last assessment in the municipality, as equalized by its board of review, next before the time fixed for the completion of the road and the delivery of the bonds. The record does not give this date, but as the road was to be completed by December 1, 1895, it is a fair inference from the pleadings and finding that it was completed by that time. The assessment intended by the constitutional provision is the assessment of the town, city, or village, as equalized by its board of review, made for the purposes of general taxation, and there is no other assessment, within the meaning of this provision, “for state and county taxes.” The so-called “state assessment” is made on the third Monday of May, before the local assessments are made, and “from all the sources of information accessible to the board, as a means of apportioning state taxes between the several counties." A valuation of the property in the several counties is thus arrived at. R. S. sec. 1069. At the annual meeting of the county board in November, the local assessments, baving been completed in the meantime, with statistical statements, are laid before the county board, and it is then “to determine and assess the relative value of all the taxable property in each town, city, and village,” as a means of apportioning the state and county taxes between such towns, cities, and villages; but the taxes therein are computed and extended upon the local assessments, as determined by the local assessors and boards of review. The object of the provision, by which resort is to be had to the “last assessment for county and state taxes, is to prevent a resort to special assessments, which the legislature might authorize for the purposes contemplated in the amendment only, and as a safeguard against possible evasion of its true intent and purpose. There is no assessment distinctively made for county taxes, nor any distinctively made for state taxes, in any other sense than has been stated;

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

and to hold that there are such would be to render the pro

vision indefinite and uncertain as to which so-called “assess· ment” was intended. The last assessment of the town, city, or village as fixed by the local board of review, upon which county and state taxes may be extended, as well as local taxes, is clearly the assessment intended. R. S. secs. 1073, 1076, 1078.

5. In order to ascertain the amount of the indebtedness of the city existing at the time the railroad was completed and the bonds were required to have been delivered, so as to determine whether, after deducting such indebtedness from five per centum on the assessment of 1895, as equalized by the city board of review,— that being the limit of indebtedness the city has power to contract, under the amendment to sec. 3, art. XI, of the constitution,— the city had power to issue the bonds in question, not only municipal bonds, but all forms of city indebtedness, must be deducted, except warrants for money actually in the treasury and contracts for ordinary expenses within the current revenue. In Earles v. Wells, 94 Wis. 285, where this question was fully considered and discussed, it was held that “so long as the current expenses of the municipality are kept within the limits of the moneys and assets actually in the treasury and the current revenues collected or in process of immediate collection, the municipality may be fairly regarded as doing business on a cash basis, and not upon credit, even though there may be for a short time some unpaid liabilities. But the moment an indebtedness is voluntarily created in any manner or for any purpose, with no money nor assets in the treasury, nor current revenues collected or in process of immediate collection, for the payment of the same, that moment such debt must be considered in determining whether such municipality has or has not exceeded the constitutional limit of indebtedness.” It follows, therefore, that the amount of water bonds outstanding at the time of the completion of

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

the road, for the payment of which no certain and adequate provision had been made from the funds in the treasury or from any tax in process of immediate collection, would have to be deducted, but not the amount of state and county taxes levied on property in the said city, nor any part of the loan from the state of Wisconsin to the board of school directors of the town of Rock Falls, in Lincoln county. The facts found did not justify the conclusion that the city is indebted in any sum on account of such loan. No statute authority has been shown for apportioning said indebtedness between said city and the board of school directors of the town of Rock Falls, and, if any exists, no such apportionment of such indebtedness appears to have been made. In the absence of any such showing, the indebtedness for that loan is the indebtedness only of the corporation contracting it, and the facts found do not justify the conclusion that the city is indebted in any sum whatever on account thereof. All other items of alleged city indebtedness were either paid before December 1, 1895, or there were sufficient funds and resources in the city treasury to discharge the same in the course of current administration of the financial affairs of the city.

The judgment of the circuit court dismissing the proceedings herein upon the ground that the contract made by the relator with the city for the issue of bonds and subscription to its capital stock was null and void, is erroneous and must be reversed.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

State ex rel. Smith vs. Board of Education of the City of Eau Claire.

THE STATE EX REL. Smith, Respondent, vs. The BOARD OF

EDUCATION OF THE CITY OF Eau Claire, imp., Appellant.

March 23 - April 30, 1897.

Public schools: Expulsion of pupil: Tuition fees: Residence for school

purposes.

1. The wrongful exaction of a tuition fee by the teacher and principal

of a school as a condition of allowing a pupil to remain in school, and the payment of such fee under protest, are not equivalent to an expulsion of the pupil from the school, where the school board

alone has the power of expulsion. 2. Where a child of school age is sent or goes into a school district

with the primary purpose of securing a home with a particular family, he is entitled to the benefits of the public schools in that district free of charge; but if his primary purpose in locating therein is to participate in the advantages of the public schools he must pay tuition, even though he has some other incidental purpose to subserve while so attending school.

APPEAL from a judgment of the circuit court for Eau Claire county: W. F. Bailey, Circuit Judge. Reversed.

The facts are stated in the opinion.

For the appellant there was a brief by Doolittle & Shoemaker, and oral argument by L. A. Doolittle.

A. C. Larson, for the respondent.

Cassoday, C. J. The plaintiff's petition for a mandamus states, in effect, that at the times mentioned he was a resident householder and taxpayer in the Eighth ward of Eau Claire; that Ingvald Olson, a minor of the age of eleven years, had previously been apprenticed to him, and had lived with and been a member of his family continuously since December 23, 1892, and that he had furnished Olson with the necessary school books, utensils, and apparatus; that Olson had attended the school in the Eighth ward since the commencement of the school term of 1893, up to March 30, 1894, on which last-mentioned date he was suspended, dismissed, and

State ex rel. Smith vs. Board of Education of the City of Eau Claire,

expelled from said school by the teacher in the room where he belonged, and by the principal of the school, under and by virtue of a certain pretended resolution passed by the board of education of that district March 20, 1894, but without lawful authority or right, and without legal or reasonable excuse, and contrary to the wish of the plaintiff; that said teacher, principal, and board of education had each and all refused to readmit the said Olson as a pupil in the school unless he should pay a certain sum as tuition fee; that March 29, 1894, the plaintiff tendered the teacher of the room where Olson attended the required amount of tuition fee, but that she refused to receive said money, and informed the plaintiff that said money should be paid to the city treasurer; that March 30, 1894, when said pupil was so suspended, dismissed, and expelled from said school, the principal of the school was again tendered the amount for tuition, under protest, but she refused to receive it and admit him as such pupil, and illegally excluded him therefrom. The substance of such statements is repeated in the alternative writ of mandamus issued from the circuit court.

To that writ the board of education made answer and return to the effect that Olson was not a resident of the school district, and was not entitled to attend any public school in the city without payment of tuition therefor; that an order had been duly and regularly made by the board excluding from the privileges of the schools of the district any and all pupils who were not residents of said school district, unless such nonresident pupils should pay to the city treasurer the tuition fee therein named, - and denied any knowledge, or information sufficient to form a belief, as to the truth of any of the allegations in the petition therein contained, except as to the allegation that the said Olson had been suspended, dismissed, and expelled from the Eighth Ward school of the city; that said allegation was thereby denied; and that said board of education alleged that the said Olson had

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