State ex rel Sherman v. Common Council , 20 Wis. 87 ( 1865 )

Downer, J.

The defendant moves to discharge and set aside the rule to show cause why a peremptory writ of mandamus should not issue. This motion must be regarded as a demurrer, and the statements of the relator taken as true.

The attorney for the defendant, in support of the motion, insists that the writ should not be granted where there is any other clear legal remedy, and that there is such remedy by pursuing the same course to collect a judgment against the city as to collect judgments against towns. He cites Crane v. Fond du Lac, 16 Wis., 196. This court did decide in that case that where there is no special provision in the charter of a city as to how judgments against it may be enforced, judgments must be enforced in the same manner as judgments against towns. Sections 77 and 78 of ch. 15, R. S., point out a particular mode of collecting judgments against towns. Subdivision twenty of sec. 1, ch. 5, R. S., is as follows: “ The word ‘ town ’ may be construed to include all cities, wards or districts, unless such construction would be repugnant to the provisions of any act specially relating to the same.” In construing this provision in connection with sections 77 and 78, above cited, the court decided that the word “town,” as used in the latter, might be construed so as to embrace cities. What is the meaning of subdivision 20, sec. 1 ? We are satisfied that it means that wherever the word “ town ” is used in any act, it may, if the context requires it, and that is clearly the sense in which the authors of the act intended it should be used, be so construed as to include cities or wards. It may be so construed, if a correct construction of the act requires it, not that it musí or shall be so construed, contrary to the evident meaning of the act. The word “town,” as used in sections 77 and 78, chap. 15, and in fact throughout that entire chapter, is used with great exactness, and with such precision that it cannot be construed to mean anything else but the political corporation or quasi corporation therein described, which is very far from being a city.

The case of Crane v. Fond du Lac was decided without oral argument, and without due deliberation, and is overruled.

It appears to us that a sufficient demand and refusal is alleged by the relator; and it does not appear from any law or the charter of the city that the common council have not the power to raise by tax money to pay the judgment of the relator. If they have not, théy can show this by way of answer.

By the Court.- — The motion is overruled, and leave given to answer in twenty days.