Iron County news. [volume] (Hurley, Wis.) 1913-1950, 1916-07-15
TEXT OF PAVING DECISION.
Issue Of July 7 of the Northwestern
Reporter Contains Text of Deeis-
ion in Paving Case.

out authority or jurisdiction in the
premises, and the principle of estop-
pei does not apply, as has been held
by successive decisions of this court, ,"
Is the way Justice j. Rosenberg
sums up the decision of the state SUI
preme court as set forth in the July
number of the Northwestern Report
er received here the fore part of the
week. For the benefit of our readers
we print the text of the decision
below:
The fundamental question in this
! case may be stated thus: Did the a.
doptlOn of the resolution by the cleo
tors at 5he annual town meeting of
April, 1914, confer upon the town
board of the town of Vaughn the au-
thority to grade and pave streets in
the unlncorporated village of Hurley
and levy tax therefor under sec
tions 905 and BOG, Wis. Stats? 1t is
| conceded that the resolution did con-
fer such power if there is no conflict
within the meaning of subdivision ID,
| 776, Stats, which is as follows:
"All powers relating to villages and
conferred upon village boards by the
provisions of chapter 40 of the Stat
utes, excepting those, the exercise of
which would conflict with the statutes
| relating to towns and town boards,
are conferred upon towns which con-
tain population of not less than five
hundred and having therein one or
more unincorporated villages, and
may be exercised by the board of
/ cnnl no,
ton of the electors thereof at an an
nual town meeting"
Justice Rosenberg then set forth
in brief the laws relating to public
Improvements in towns, which we
have omitted for lack of space.)
| 0D Does the exercise of the powers
relating to villages and conferred
| upon village boards in the matter of
| the improvement and repair of high
ways conflict with the powers relat-
| ing to towns and town boards? We
think it does, in vital and substan-
tial way. If town board, exercising
the powers conferred upon village
| board by statute, may cause one-half
of the cost of paving to be paid out
| of the town treasury, they can, as in
this case, by improving village
| street, exhaust the power of the town
to raise money for highway purposes,
and so deprive the electors of the
| town of the power to raise money for
the repair and building of roads and
bridges
This court having under considera-
ton the question of whether or not a
| town had power to raise money by
general taxation 10 build sidewalks
and light public streets in an unin-
corpOrated village within its bound
aries, said:
THAT the Legislature did not pur-
pose creating any such power as that
commended for is quite plainly indi-
Gated by the fact that it adopted a
complete system in relation TO the
subject, by resorting solely to local
taxation for the particular local pur-
| pose, in harmony with the general
scheme of town government. Such
system is found in sections l243, l346a
l346b, and $40 Stats. (1S9S). In so in
dustriOusly providing for such local
matters it is the opinion of the court
that it was intended to make the plan
exclusive.
The same may be said &C the plan of
the laws governing the construction
and repair of highways in villages
In order that there be conflict it is
not necessary that the plans oppose
each other at every point. 1t is sufii-
Client if they are fundamen tally incon-
sistent 1t may be commended that
there is no conflict if only that part of
section 905 which authorizes the viii
| lage board to assess the entire cost of
improvements to abutting property
owners be considered as adopted. The
difficulty with that contention Is that
the statute does not provide for two
things, but for one thing Ii the pow
ers enumerated in sections 905 and 906
are exercised, they conflict with the
| powers conferred upon towns, and the
powers enumerated in sections pos
and 906 are therefore not conferred
upon towns by the adoption of resO-
| luton under subdivision IL of section
7T6, Stats. 1t makes no difference that
in a particular instance the town
board might not fully exercise the
powers enumerated in said sections.
| The question is not whether town
board can exercise part of the pow
ers enumerated in such way that
there would be no conflict in partic-
ular instance. The question is, Do
the powers if exercised conflict? If
they do, then the power is not con-
ferred, either in whole or in part. Ii
the statute conferred upon village
boards the authority to cause i'm
provements to be made of the charac-
ter specified, and required the whole
cost thereof to be assessed against
abutting property owners, different
question would be presented. The
town board could not, under such a
law, by improving village streets ex-
haust the power of the town to raise
money for highway purposes. and the
exercise of one power would not then
conflict with another. As the law
stood in 1914. there was a clear con
tlict.
Therefore. upon the facts found,
the town board in this case was with
out authority or jurisdiction in the
premises, and the principle of estoppel
does not apply. as has been held by
successive decisions of this court.
| McGowan V. Paul. 14l Wis. SSS, l23
y. W. 255; Menasha Wooden Ware
Co. V. Winter. 1859 Wis. 4S7, $50 \ w
526. The conclusion reached renders
| - consideration Of ~