Fraser v. Mulany

• Decision Date: 09 October 1906
• Citation: 109 N.W. 139,129 Wis. 377
• Parties: FRASER ET AL. v. MULANY ET AL.
• Court: Wisconsin Supreme Court

129 Wis. 377

109 N.W. 139

FRASER ET AL.

v.MULANY ET AL.

Supreme Court of Wisconsin.

Oct. 9, 1906.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Suit by Charles Fraser and others against C. A. Mulany and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed and remanded.

Appeal from an order sustaining a demurrer to the complaint of the plaintiffs, praying that the defendants, who are the supervisors of East Troy, Walworth county, be temporarily and permanently restrained from all proceedings towards constructing a certain ditch, and that the proceedings already taken to authorize the same be adjudged invalid. The five plaintiffs are several owners of different parcels of land through which the ditch passes and against whom an assessment has been made for its contruction, and who are severally charged with the duty of maintaining specified sections thereof. The proceeding assailed is under the town drain statutes. Sections 1359 to 1371, Rev. St. 1898. The complaint avers the filing of due petition by a sufficient number of freeholders alleging the necessary facts, and the making of an order of notice for hearing for the 18th day of November, 1905, but that, although such service was attempted, and a so-called proof of service was made, of which a copy is attached to the complaint, such notice was not in fact served upon each of the resident owners of the several tracts of land through which the ditch would pass, either personally or by leaving a copy at their usual place of abode at least five days before the time fixed for such meeting, and that the notice was in fact not served in any manner whatsoever upon a large number of such resident owners. The so-called proof of service is made by affidavit of a nonofficial person, and states merely that he personally served the annexed notice upon the necessary persons, naming them, and that he posted such notice in three specified public places. It is further alleged that the defendants met at the time specified to examine the location and hear protests, assuming that such notices have been served, and on the 23d day of December made an order purporting to lay out said ditch and establishing the route, in form substantially according with the requirements of the statute, copy of which is annexed to the complaint, and also on said day made an order dividing said ditch into sections and assigning to each of the owners of certain parcels of land benefited, including plaintiffs', a section of such ditch to be kept in repair, and also declared an estimate of the cost of construction of each section separately, but did not determine or estimate or include in the amount necessary to be raised for the construction of said ditch any damages to any of the persons through whose lands said ditch was to pass. The complaint also alleges that on the 26th day of December the defendants attempted to apportion and assess the total cost of construction upon the tracts of lands which in their judgment would be directly benefited, and made and signed a document purporting to be a certificate of such assessment, and filed the same in the office of the town clerk, but did not cause it to be recorded in the town clerk's office at any time, and the same never has been recorded; that in so apportioning said ditch it was divided into a less number of sections than the number of the several parcels of land which would be directly benefited by the construction thereof; that no agreement was ever made with any of the owners ascertaining the damages to them from the opening of the ditch, nor was any release in writing received from any such owners, and no award or determination of the damages in writing or otherwise was ever made, nor was the question passed upon or considered by the defendants; that the defendants did not apportion or assess the cost of construction upon all the tracts of land directly benefited in proportion to the benefit to be respectively derived from such tax, but arbitrarily and not in the exercise of their judgment omitted and failed to assess any portion of the cost upon a number of tracts of land which would be directly benefited, and unreasonably and arbitrarily, and not in the exercise of their judgment, did assess part of the cost of construction to several tracts of land not in fact directly or indirectly benefited by such ditch, and which, owing to their physical conformation, could not be in any manner so benefited; that the ditch is laid across at least one public highway, but defendants made no determination in any manner whether such public highway would be benefited by such construction of the ditch, nor the amount, if any, of such benefit which should be paid by the town; that certain stated amounts were assessed against the lands of each of the plaintiffs, which the defendants caused to be extended upon the tax roll of the town in process of collection at the time of making the complaint. Wherefore the proceedings are declared to be unlawful and void. The complaint further states serious damage to the several plaintiffs to result from the excavation upon their lands and the diversion of a natural water course or stream of great value to them and each of them for watering stock, from which privilege and opportunity they will be deprived, as also of other benefits derived from such water course in its natural state, and whereby, also, large quantities of water will be gathered together and discharged upon and over the lands of the plaintiffs, to their serious injury and the creation of nuisance thereon; that the defendants threaten and intend to let contracts and proceed with the construction of said ditch across the lands of the plaintiffs, whereby the value of their respective lands will be greatly diminished and their property injured, and that they have no adequate remedy at law.Tullar & Lockney, for appellants.

Ryan, Merton & Newbury and J. W. Page, for respondents.

DODGE, J. (after stating the facts).

The supervisors of a town, under the town ditch statutes, constitute a special tribunal for administrative purposes, not proceeding according to the course of the common law; hence exact compliance with the course of proceedings prescribed by law, at least in all substantial matters, is essential to their jurisdiction. Unlike courts of record, they have no jurisdiction to err as to the law governing procedure. Their field of permissive error without loss of jurisdiction is confined to those subjects over which they are authorized to exercise judgment or discretion. Ruhland v. Sup'rs of the Town of Hazel Green, 55 Wis. 664, 13 N. W. 877;State v. Lawler, 103 Wis. 460, 79 N. W. 777;State v. Huegin, 110 Wis. 189, 239, 85 N. W. 1046, 62 L. R. A. 700;State v. Losby, 115 Wis. 57, 63, 90 N. W. 188;Holz v. Rediske, 116 Wis. 353, 92 N. W. 1105. If they lose jurisdiction by failure to perform any necessary step, their proceeding and determination are wholly void, and may be attacked collaterally or directly. Ruhland v. Jones, 55 Wis. 673, 13 N. W. 689;McKee v. Hull, 69 Wis. 657, 35 N. W. 49;Schroeder v. Klipp, 120 Wis. 245, 97 N. W. 909. In the light of these general rules, we proceed to consider the defects in the proceeding alleged in the complaint, omitting such as appellants have not argued, on the assumption that they may have been found unsupported in fact and therefore immaterial.

1. There is positive allegation of failure to give notice of the first hearing, as required by section 1360, Rev. St. 1898. This is fatal according to unvarying authority. Roehrborn v. Schmidt, 16 Wis. 519;State v. Langer, 29 Wis. 68;State v. Graham, 60 Wis. 399, 19 N. W. 359;State v. Logue, 73 Wis. 598, 41 N. W. 1061. Respondents seem to contend that assertion of the presence in the record of an affidavit of service by some one neutralizes the express allegation of absence of such service. This is mere confusion. While the complaint asserts the existence of the paper, it nowhere alleges or admits that any of the facts stated by it are true. McVichie v. Town of Knight, 82 Wis. 137, 51 N. W. 1094. Another contention is that some presumption conclusively supports the proceeding, if the record shows declaration of service. It would be strange indeed if this tribunal, having no authority to proceed at all unless service was in fact made, could yet go on with condemnation of plaintiffs' lands and assessment of expenses in entire absence of such service, merely...