Manns v. Marinette & Menominee Paper Co.

• Decision Date: 13 October 1931
• Citation: 238 N.W. 624,205 Wis. 349
• Court: Wisconsin Supreme Court
• Parties: MANNS ET AL. v. MARINETTE & MENOMINEE PAPER CO. ET AL.

205 Wis. 349

238 N.W. 624

MANNS ET AL.

v.MARINETTE & MENOMINEE PAPER CO. ET AL.

Supreme Court of Wisconsin.

Oct. 13, 1931.

Appeal from Circuit Court, Marinette County; Arnold F. Murphy, Judge.

On reargument confirming former mandate.--[By Editorial Staff.]

For former opinion, see 235 N. W. 426.Adolph P. Lehner and Lehner & Lehner, all of Oconto Falls (James F. Hamill, of New York City, of counsel), for appellants.

L. M. Nelson, of Marinette, for respondents.

PER CURIAM.

The briefs presented upon motion for rehearing urged that the decision in this case was contrary to Wisconsin Central Railroad Company v. Cornell University, 49 Wis. 162, 5 N. W. 331;Wisconsin Central Railroad Company v. Cornell University, 52 Wis. 537, 8 N. W. 491;Milwaukee & Northern Railroad Company v. Strange, 63 Wis. 178, 23 N. W. 432;Gill v. Milwaukee & Lake Winnebago Railroad Company, 76 Wis. 293, 45 N. W. 23;State ex rel. Chicago & Northwestern Railway Company v. Oshkosh, Algona & Black Wolf Railroad Company, 100 Wis. 538, 77 N. W. 193. Believing that the question of the appealability of the order here involved should receive further consideration, a rehearing was granted. The question upon which the reargument was desired was apparently not appreciated, as the briefs upon rehearing are not addressed to the question of the appealability of the order.

[1] The cases above cited did hold that under the statutes there involved, orders similar to the one here in question were appealable. However, all of those cases involved condemnation proceedings brought by railroads. Prior to the enactment of chapter 32 of the present revised statutes (sections 32.01 to 32.20), provisions relating to condemnation proceedings were scattered all through the statutes and were far from uniform. The revisor's note to section 32.01, to be found in Wisconsin Annotations of 1930, indicates the heterogeneous character of our law relating to the exercise of eminent domain prior to the enactment of chapter 32. The present revisor of statutes informs us that chapter 32 created twenty sections, repealed 68 sections, and eliminated condemnation proceedings from 22 sections. Chapter 32 is a uniform law providing a method for exercising the power of eminent domain under which all who are given that power must act. The construction placed upon specific provisions prior to the enactment of chapter 32 is not at all controlling in the construction of chapter 32 unless a similarity is to be found between the provisions of chapter 32 and the statutes involved in the prior decisions of this court.

As already stated, the cases relied upon involved condemnation for railroad purposes. The procedure to be followed by the railroads in the exercise of the right of eminent domain, as it has always existed, is revealed in the main by a reference to sections 1845 to 1857, inclusive, of the Statutes of 1917. Section 1846 required the petition to be presented to the circuit court, or the judge thereof, and further provided that the filing of such petition shall be the commencement of a suit in said court. Similar provision is to be found in some but not all other statutes providing for the exercise of the power of eminent domain by those to whom the power was granted by the legislature. Where the petition is made to the circuit court, and where the filing is declared to be the commencement of a suit in said court, it is apparent that the filing of said petition is the institution of judicial proceedings, and that whatever is done upon or with reference to such petition constitutes at least a special proceeding in said court, certain orders made in which were declared appealable by the statute. Chapter 32, being a composite of all the condemnation laws existing prior to its enactment, contains no such provision as is to be found in said section 1846.

Section 32.04 provides that the petition shall be presented to the county or circuit judge of the county where such property is situated. The appellants in their original brief argued that the petition in this case was a nullity, because it was addressed to the county court, because the notice of hearing was made by the county court, and because the commissioners were appointed by the county court. It was argued with much assurance that under this statute the appointment of commissioners was a ministerial and not a judicial act, and the appointment of the commissioners by the county court was entirely without warrant or authority.

That the county judge in the appointment of such commissioners is acting merely as a ministerial officer, we are frank to say, was a contention with which we were much impressed; but it plainly appeared that by making this contention the appellants argued themselves out of court. If the act of the county judge in appointing...