#### The State ex rel. Town of Princeton, Appellant, vs. Maik, Clerk, Respondent.

*January 8*—

February *18, 1902.*

*Municipal corporations: Arbitration: Towns: ’Villages: Division of property on separation: “Joint property:” Judgments:*Res ad-judicata: Mandamus.

1. Where, on the separation of a town and village, a controversy existed as to the disposition of a judgment existing against the village in favor of the entire town including the village, and the municipalities, in order to settle the controversy and avoid litigation, jointly sought the legal opinion of an attorney, and submitted various questions to him for decision, his decision is in no- sense the award of an arbitrator.

*2402. Until the enactment of ch. 287, Laws of 1897, a Tillage had, for town purposes, remained a part of the town in which it was situated. Thereafter it was wholly separated from the town. While the Tillage was part of the town it had collected and retained certain sums for licenses for the sale of liquors, and an action brought by the town to recoyer the same was settled and judgment entered therefor in *favor of the town*and against the Tillage, on which the Tillage had made partial payments. *Held,*that the balance due on the judgment at the time of the separation was ’the joint property of both municipalities within the meaning of sec. 96, ch. 287, Laws of *1897, providing*that when a Tillage is a part of a town for town purposes, and owns property “jointly with such town,” such property shall be diyided in proportion to the “equalized Talue of each,” to be determined as therein provided.

3. Where such Tillage had no separate and independent existence when the judgment was rendered, and the question as to the ownership of the judgment was not therein inyolyed, such judgment is not *res adjudicaita*on that question.

4. Where it appeared that the equalized yaluation of the Tillage was more than that of the town, and that the Tillage had already paid two-thirds of the face of such judgment, *mandamus*will not lie to compel the Tillage to place the amount remaining unpaid thereon upon- its tax roll, and compel its collection for the benefit of the town.

Appeal from a judgment of the circuit court for Green Lahe county: Geo. W. BueNell, Circuit Judge.

*Affirmed.*

This is an appeal from a judgment dismissing upon the merits the relator’s application made December 20, 1898, for a peremptory writ of *mandamus*to compel the village of Princeton and its officials to place the amount remaining unpaid of the judgment against the village in favor of the town entered March 30, 1895, upon the tax roll of the village, and to extend such amount, with interest, upon the taxable property of the village, and to collect the same for the benefit of the relator. It appears from the record, and is in effect found by the court, or is undisputed: That the village was first incorporated in 1865, and was reincorporated by ch. 184, P. & L. Laws of 1867. That by that act the territory eompnV-"" the village was reannexed to the *241town for general municipal purposes, and it was provided in the act that it should constitute a part of the town as fully and as perfectly in all respects as before the passage, of the former charter, and that the inhabitants of the territory shonld have and enjoy the common franchises and privileges, and be subject to the authority and control, of the town. That such charter was amended by ch. 98, Laws of 187'6, which conferred or attempted to confer upon the village of Princeton the exclusive right to grant licenses for the sale of liquors within the corporate limits of the village, under the excise laws, with the proviso that within thirty days after the same was received it should transfer one half of all moneys received under the excise laws to the town treasurer for the support of the poor. That from the passage of the act until 1893 the village of Princeton assumed the right to, and its board did, issue and grant licenses under the excise laws, and receive and collect license moneys therefor, and did regularly pay over to the town one half thereof, as provided for in said act. (1) That the village remained under special charter until the spring of 1893, when it was duly decided by a majority vote that the village should'be reincorporated under the general statute, as prescribed in sec. 852, E. S. 1878, as amended; but that no election was held in the town for the purpose of separating the village from the town, and the village remained a part of the town, for town purposes, until the enactment and publication of ch. 287, Laws of 1897, — April 26, 1897. That pursuant to that chapter an assessor was elected for the village at the spring election of 1897, and since that time it has been and remained an incorporated village, wholly separated from the town for all purposes. (3) That prior to July 2, 1894, the village board had adopted no ordinance for caring and •providing for the support of the village poor, but at that time did adopt such an ordinance, and since its adoption the vil*242lage tas provided for and supported its own poor. (4) Ttat after tte granting of licenses in tte year 1893, and on August 24, 1894, tte town commenced an action against tte village to recover tte amount of money received by tte village for tte granting of licenses. Ttat tte action was disposed of upon stipulation, agreement, and settlement between tte parties. Ttat, pursuant to tte stipulation, findings were made by tte court, and judgment was entered thereon Maret 30, 1895, for $4,035.60, to be paid by tte village to tte town as follows: $612.60 immediately upon tte rendition and docketing of tte judgment; $612.60 July 15, 1895; $612.60 July 15, 1896; $612.60 July 15, 1891; $612.60 July 15, 1898; and $612.60 July 15, 1899. Ttat, tte village being a part of tte town, tte money so to be paid by tte village to tte town was for tte general good of tte town, wtict included tte village;, and suet payment was to be for tte use and benefit of tte wtole town, including tte village. (5) Ttat tte village paid to tte town tte installment falling due on tte entry of the judgment, and also each of the installments falling due, respectively, July 15, 1895, July 15, 1896, and (8) July 15, 1897. (6) Ttat April 26, 1897, tte village became and was separate and apart from tte town, and on ttat day so muct of tte judgment as was unpaid was property belonging to tte town, including tte village, and was, within the meaning and scope of ct. 287, Laws of 1897, property owned by tte village jointly with tte town. (7) Ttat in November, 1897, tte property of the town and village, togatter with tte property of all otter municipal organizations in tte county, was equalized,, and tte equalized value of eact was fixed by tte county board at its first equalization subsequent to suet separation in November, 1897. Ttat tte equalized'value of tte town was fixed at $155,000, and tte equalized value of tte village was fixed as $170,000, and ttat ttereby under tte statute tte town owned equitably of said judgment 31-65 *243thereof, and the village owned equitably 34-65 thereof. (12) That after the passage and publication of ch. 287, Laws of 1897, the town and village were at variance as to the effect of that chapter, and undertook to settle such variance and avoid litigation, and jointly sought the legal opinion of an attorney, and by agreement submitted various questions to him for his decision. That one of the questions so submitted was what was to be the disposition to be made of the judgment which the town had against the village. That such question was answered by the attorney in writing, with others, to the effect that the judgment was, within the meaning of the statute, joint property, -and to be divided in proportion to the equalized value of the town and village, made next subsequent to the separation. (13) That the town has since the spring of 1898 insisted that it was entitled to the whole of said judgment, irrespective of any interest of the village therein, and hence the parties have been unable to agree upon a division of the property. (9) That November 3, 1898, the town demanded payment of the whole judgment and filed with the village clerk a certified transcript of the same, together with the affidavit of its chairman to the effect that the whole amount thereof was due, and a demand that he extend the amount upon the tax roll against the taxable property of the villáge. (10) That at that time there was nothing due to the town upon the judgment, and the village was not in default. (14) That November 17, 1898, the village made an application to the county judge for the appointment of three arbitrators, under the statute, to view the property, and appraise and fix the value thereof for the purposes of division, which property was, April 26, 1897, owned jointly by the village with the town, within the spirit and meaning of ch. 287, Laws of 1897. That such proceedings were duly had after due notice to the town. That upon such application, November 29, 1898, the county judge appointed three arbitrators’ (named), freeholders’ of the *244county, and not residents or taxpayers of either the town or village, to view the property, and appraise and fix the value therof for the purposes of division. That at the hearing before the county judge the town board appeared and objected to any division of the judgment, or to any acts being done or taten in reference to the same, then and there claiming and insisting that the village had no interest therein. (15)' That no meeting of the arbitrators so appointed has ever been held, and nothing has been done under such arbitration, because of the pendency of this litigation; both the town and village having expressed a desire to have the law settled as to what property is to be divided, before any further proceedings before the arbitrators. (11) That a special town meeting of the electors of the town was held December 3, 1898, and the town duly authorized these proceedings, and the same were commenced December 20, 1898.

And as conclusions the law court found: (1) That the document furnished by the attorney so agreed upon, as mentioned in the twelfth finding, was not an award, and that there was no arbitration, and that the paper amounted, in law, to a legal opinion, and nothing more; (2) that the judgment and the amount unpaid thereon at the time of the separation of the village from the town is, within the spirit and meaning of sec. 96, ch. 287, Laws of 1897, property owned by the village jointly with the town, and is property to be divided between them in proportion to the equalized value of each, as fixed by the county board at the first equalization subsequent to such separation; (3) that judgment be entered ’ dismissing the proceedings and denying the application for a peremptory writ, and for costs in favor of the defendant and against the relator, to be taxed, — and ordered judgment to be so entered. From the judgment thereon accordingly, the relator brings this appeal.

For the appellant there was a brief by *Barbers*& *Beglinger,*and oral argument by *Fred Beglinger.*

*245Eor the respondent there -was a brief by *Thompsons, Hol-lister &*Pinkerton, and oral argument by *A. E. Thompson.*

Cassoday, C. J.

We all agree "with the relator and the trial court that the decision of the attorney, mentioned in the twelfth finding of fact,, and the first "conclusion of law, was a mere legal opinion, and in no sense an award of an arbitrator.

The facts are undisputed. The exceptions to certain findings of the court are based upon the assumption that the trial court was wrong in holding that the balance due on the judgment in question was property owned by the town and the village jointly. The principal controversy is as to the construction to be placed upon the statute which declares:

> “Whenever any village heretofore organized under any general law, which at the time when this act shall take effect, shall be part of a town or towns for town purposes, and whenever any village which shall have been organized under any special law and shall at the time of reincorporation under section 1 of this act [sec. 852, R. S. 1878, as amended], be a part of a town or towns for town purposes, *shall own property. jointly*with such town or towns, such property shall be divided between them in proportion to the equalized value of each as fixed by the county board at the first equalization subsequent to such separation.” Sec. 96, ch. 287, Laws of 1897.

It is undisputed that the village remained a part of the town for town purposes, first under the'special charter, from 1867 to 1893, and then under the general charter, until April 26, 1897, when the act in question went into effect. Erom and after the passage of that act the village became a separate and independent municipality. Secs. 5, 6, 100, ch. 287, Laws of 1897; *State ex rel. Rock v.*Taylor, 94 Wis. 267. It is also undisputed that the judgment of March 30, 1895, was entered in an action commenced by the town against the village August 24, 1894, to recover moneys re*246ceived by the village fo<r licenses granted by it, as mentioned in the second finding of fact, and which licenses it was supe posed the village had “the exclusive right to grant” by virtue of ch. 98, Laws of 1876, purporting to amend its special charter. *Smith v. Sherry,*50 Wis. 210. None of such licenses were granted after the spring of 1893. These things being so, it is obvious that if the unpaid balance of the judgment is property owned by the town and village jointly, within 1 the meaning of the statute quoted, then that statute declares:

> “Such property shall be divided between them in proportion to the equalized value of each, as fixed by the county board at the first equalization subsequent to such separation.”

In construing the statute the trial court adopted the ^ruling made by this court at an early day, wherein it was held that “the legislature, however, has an undoubted right to change the territorial limits of municipal corporations, and to detach from a town a portion of its territory and annex it to another town, and in so doing may provide for an equitable division of the common property.” *Milwaukee v, Milwaukee,*12 Wis. 93. And the trial court added, “That seems to be precisely what they have done here, — separated the town from the village, and provided for an equitable division of common property.”

The power of the legislature to determine the righto and liabilities of the respective organizations cannot be well questioned. *Depere v.*Bellevue, 31 Wis. 120, 125; *Forest Co. v. Langlade Co.*76 Wis. 605, 610; *School Directors of Pelican v. School Directors of Rock Falls,*81 Wis. 428; *School Directors of Ashland v. Ashland,*87 Wis. 533; *Joint School Dist. No. 8 v. School Dist. No. 6,*92 Wis. 608.

> “A statute is to be interpreted not only by its exact words, but also by its apparent general purpose.” *U. S. v. Saunders,*22 Wall. 492; *School Directors of Pelican v. School Directors of Rock Falls,*81 Wis. 428, 432, 433.

*247In this last case, and in view of the object of the statute then under consideration, it was “held that the word ‘credits,’ as used in the act, means the balance of the assets of the district from which the territory is detached, after deducting its debts and liabilities. It includes, therefore, school houses, school sites, furniture, and fixtures.” So in view of the object of the statute in question, the words “shall own property jointly” should be construed to include property owned by the town and village in common. As said by the trial court, that “does not attempt to deprive the town of any specific property,” but “only provides for an equitable division of the joint or common property.” To hold that the words quoted refer only to property to which both the town and the village, technically, had joint title, would seem to be contrary to the manifest purpose of the act, and render meaningless the clause which provides that such property should “be divided between them in proportion to the equalized value of each,” as prescribed by the statute., As found by the trial court, the unpaid balance of the judgment “was property belonging to the town, including the village.” It was for moneys received by the village for licenses granted by it while it was a part of the town, and before it had a separate and independent existence. It was property in which the inhabitants of both had a common interest. The construction suggested is in harmony with the section requiring the indebtedness to be so apportioned between the town and village. Sec. 94, ch. 187, Laws of 1897. According to Eouvier, the term “joint” “is used to express a common property interest enjoyed or a common liability incurred by two or more persons. As applied to real estate, it involves the idea of survivorship.” *We*must hold that the balance due on the judgment at the time of the separation of the village from the town was the joint property of both, within the meaning of the statute.

There is no ground for claiming that the judgment against *248tbe village was *res adjudícala.*Tbe village bad no separate and independent existence wben tbat judgment was rendered. Tbe question here presented was not involved in tbat case, but arises under tbe act of tbe legislature passed more than two years after tbe rendition of tbat judgment. It appears, as found by tbe trial court, tbat tbe village paid to tbe town two thirds of tbe judgment before tbis proceeding for a *manr damus*was commenced. Tbe equalized value of tbe property in tbe village was, as found by tbe trial court, considerably more than tbe property in tbe town. Sucb being tbe facts, there is nothing due on tbe judgment from tbe village to tbe town; and hence tbe. court properly dismissed tbe proceedings, and ordered judgment in favor of the defendant and against tbe relator for costs.

*By the Gourt.*— Tbe judgment of tbe circuit court is affirmed.