Opinion
February 5, 1953 —
March 3, 1953.
APPEAL from a judgment of the circuit court for Rock county: HARRY S. FOX, Circuit Judge. Reversed.
For the appellant there was a brief by Dexter I. Munson of Milton junction, and Ernest P. Agnew of Janesville, attorneys, and Cunningham Buell of Janesville of counsel, and oral argument by Mr. Munson and Mr. Robert J. Cunningham.
For the respondent there was a brief by Geffs, Geffs, Block Geffs of Janesville, and oral argument by Jacob Geffs and George S. Geffs.
Proceeding commenced by petition for division of assets and liabilities under sec. 66.03, Stats., between the town of Milton and the village of Milton Junction following the formation of the village on January 21, 1949, out of a part of the town. From a judgment holding that certain funds held by the town pursuant to a vote of the town meeting on April 3, 1945, establishing a community-building fund for the town of Milton, are not subject to apportionment, the village of Milton Junction appeals.
Prior to April 3, 1945, 184 freeholders of the town of Milton had requested in writing that the following question be submitted upon referendum:
"Shall the town of Milton set aside from moneys now on hand the sum of $40,000 for the establishment of a community-building fund for the town of Milton?"
The question was submitted to the annual town meeting on April 3, 1945, and the vote was 113 "Yes" and 22 "No." It is undisputed that the election was regular and the referendum valid under the provisions of sec. 60.18, Stats.:
"The qualified electors of each town shall have power at any annual town meeting by vote: . . .
"(9) Buildings. To raise money to purchase, lease, or build a town hall or other building for use of the town, or to unite the same with the money of any corporation or society doing business or located in such town, for the purpose of building, leasing, or purchasing such hall or building; but no such vote shall be taken except by ballot nor unless a request in writing signed by at least 12 freeholders of such town shall have been delivered to the town clerk twenty days before the holding of such meeting, asking that such proposition be submitted to a vote of the electors of the town at such town meeting, and setting forth the amount of money which they desire shall be raised by the town for that purpose and whether the same shall be raised by a direct tax or the issue of bonds, . . ."
The fund so established is invested in government bonds which had a redemption value on January 21, 1949, of $42,717.95.
On January 21, 1949, pursuant to appropriate proceedings, the village of Milton junction was declared incorporated out of a part of the territory of the town of Milton. Thereafter a proceeding was brought in the circuit court for apportionment of the assets and liabilities between the village and the town pursuant to sec. 66.03 (2), Stats.:
"Except as otherwise provided in this section when territory is transferred, in any manner provided by law, from one municipality to another, there shall be assigned to such other municipality such proportion of the assets and liabilities of the first municipality as the assessed valuation of all taxable property in the territory transferred bears to the assessed valuation of all the taxable property of the entire municipality from which said territory is taken according to the last assessment roll of such municipality. . . ."
The assessed valuation of the territory comprising the village is equal to 31.138 per cent of the valuation of the original town.
The only question presented is whether the funds transferred pursuant to sec. 60.18 (9), Stats., "for the establishment of a community-building fund for the town of Milton" are subject to the apportionment required by sec. 66.03 (2).
In the opinion of the trial court the vote of the town meeting on April 3, 1945, had the effect of establishing a trust fund which cannot be used except in the manner designated. We do not believe that the action of the town had any such effect. Sec. 60.18, Stats., under which that action was taken, gives to the qualified electors of the town power by vote to raise money for the purchase, lease, or construction of a building for use of the town. Here the money was not actually to be raised, since it had accumulated as a surplus prior to the referendum.
A town has only such powers as are conferred on it by statute or necessarily implied therefrom. As stated in Swiss v. United States Nat. Bank (1928), 196 Wis. 171, 173, 218 N.W. 842:
"`It is well settled that municipal corporations have no powers except those expressly conferred or necessarily implied from the power conferred, and since towns are only quasi corporations the rule applies to them with especial force.' First Wis. Nat. Bank v. Catawba, 183 Wis. 220, 224, 197 N.W. 1013."
The town of Milton possessed the power to appropriate its funds for a town building by virtue of sec. 60.18, Stats., and the funds so appropriated could have been diverted by following the procedure outlined in sec. 65.90 (5) (a). If we were to hold that funds so set aside were trust funds not subject to the direction of sec. 66.03 (2) that they be apportioned, we would nullify the operation of that section completely. It could not have been the intent of the legislature to permit a town to circumvent the statute simply by setting funds aside for some future purpose.
In Cassian v. Nokomis (1948), 254 Wis. 94, 101, 35 N.W.2d 408, this court said:
"The power to apportion assets and liabilities is not arbitrary. It rests upon fixed principles of justice, which have for their object the protection of the taxpayer in each of the interested towns."
Respondent argues that these "fixed principles of justice" do not apply in the case of trust funds. We do not consider the funds here to be trust funds. This is not a case similar to Dartmouth College v. Woodward (1819), 17 U.S. (4 Wheat.) 518, relied upon by respondent, where the funds involved were contributed by individuals for designated charitable and educational purposes. In Montpelier v. East Montpelier (1854), 27 Vt. 704, the "rights of land," which were the subject matter of the case, were granted to the original town by its charter for a specified purpose. These and other cases relied upon by respondent and the trial court in its decision arise out of facts showing the impairment of the obligations of a contract. Here the town has entered into no contract with respect to the use of the funds involved.
It is further argued that under sec. 67.17, Stats., the town officers, in apportioning 31 per cent of the fund to the village of Milton junction under the direction of sec. 66.03, would make themselves personally liable in an action to restore such diversions to the fund. The argument has no merit. The funds there referred to are funds set up for municipal borrowing. See sec. 67.11. That situation is in no way comparable to the one before us.
Sec. 66.03 (2), Stats., is clear and unambiguous and permits of no other interpretation than its ordinary meaning. It provides for division of assets. Concededly, this fund is an asset, whether called a trust or an accumulation of moneys, and we must hold that it is subject to the division of assets required by that statute. Sec. 66.03 expresses no exception in the case of funds appropriated for a designated future purpose, nor is there any language in the statute from which such an exception can be implied. The intention of the legislature, as expressed in the Cassian Case, supra, can be fulfilled only in apportioning this money between the town and the village so that all the taxpayers who contributed to the fund may share in its use.
By the Court. — Judgment reversed and cause remanded with instructions to enter judgment apportioning the assets according to law.