Doty v. President of Menasha , 14 Wis. 75 ( 1861 )

By the Court,

DixoN, C. J.

Tbe other questions raised by tbe motion having been waived by counsel, tbe only one to be considered is, whether an injunction to restrain tbe defendant Fay, as treasurer of tbe village of Menasha, from executing and delivering deeds of certain lots in that village, sold for tbe non-payment of taxes, tbe levy and assessment of which tbe appellant asserts to have been illegal and voidj is “an injunction to suspend tbe general and ordinary business of a corporation,” within tbe meaning of section 7 of chapter 129 of tbe Revised Statutes. Tbe section provides that such injunctions shall not be granted except by the court or judge. Tbe injunction in this case was granted by a court commissioner. Upon motion before tbe court to dissolve it for that among other reasons, tbe judge held that it suspended tbe general and ordinary business of tbe corporation of tbe village, and consequently that tbe commissioner bad no power to allow it. It was accordingly dissolved.

Conceding merely municipal corporations to be within tbe prohibition of tbe statute, we are at a loss to see upon what grounds tbe restraining of tbe execution and delivery of a tax deed by tbe treasurer is a suspension of tbe general and ordinary business of tbe corporation. Certainly tbe act of tbe treasurer in such case is not tbe act of tbe corporation. Tbe corporate officers, unless expressly empowered by law, can neither direct nor control it. Tbe authority of tbe treasurer is as high and absolute as that of tbe president and trustees. Both act by virtue of powers conferred by tbe legislature, and neither can interfere with or control the action of the other within the sphere of the authority given., The corporation may be interested, and the issuing of the deed may be in part the result of the previous action of the president and trustees, but it is not their act. 'It is not their corporate business. It is the business solely of the treasurer —made so by law.

But if the issuing of the deed be admitted to be the proper act and business of the corporation, still it is not a part of its general business in the sense of the statute. It is not one of the principal or general purposes of its creation, but incidental to the main object, which was the establishment of a local government for the good order g,nd welfare of the inhabitants. Its performance depends on many contingencies which may or may not happen. Its suspension for a time does not suspend the governmental powers of the corporation, or interfere with the transaction of its ordinary business. By the use of the term “ general and ordinary business,” the legislature must have intended that the special and extraordinary business of corporations might, in proper cases, be restrained by the usual process. W e can think of none which falls more strictly within the latter description than that under consideration.

The order of the circuit court must be reversed, and the cause remanded for further proceedings according to law.