Township of West Bend v. Munch

1.townships: tions.°ipoia We have not thought it necessary to set out the other grounds of demurrer because, in our opinion, the ac-

tion cannot be maintained, and the demurrer should have been sustained upon the ground that the plaintiffs have not legal capacity to sue.

A township, under our system of government, is not a corporation authorized to sue and be sued. It is no more than a legal subdivision of the county for governmental purposes Its officers are paid for tlieir services by the county, except in special cases where payment is required to be made by private persons. Code, sections 3808-9-10. Any person elected to a township office, and refusing to qualify, shall forfeit five dollars, which may be recovered by action in the naihe of the county for the use of the school fund of the county. Section 394. These, and other provisions of the Code, indicate clearly that civil townships have no corporate powers, as such. It is true certain duties are imposed upon township officers. They may, *134by proper mandate, be compelled to perform such duties or they may be restrained from illegal acts, attempted under color of their offices, but that the township can sue or be sued, finds no warrrant in the law. If in the case at bar the plaintiffs should be permitted to proceed with their action and be unsuccessful a judgment against them for costs would be a nullity, because there is no provision of the statute authorizing its payment. The plaintiffs as. townships have no funds from which payment can he made, and there is no statute authorizing the levy of a tax for such purpose. The law expressly authorizes-counties and school districts to sue, and makes them liable-to-actions, and provides a method by which judgments- against them may be collected. No such provisions are made applicable to townships, and for the reason, as we suppose, it never was intended tliat they should sue or he sued.

The judgment of the court below in sustainingtbe demurrer will 'be affirmed, upon the ground, however, that tbe plaintiffs-have not legal capacity to sue.

Affirmed-.