State ex rel. Allis v. Wiesner

• Decision Date: 22 June 1925
• Citation: 204 N.W. 589,187 Wis. 384
• Parties: STATE EX REL. ALLIS v. WIESNER ET AL.
• Court: Wisconsin Supreme Court

187 Wis. 384

204 N.W. 589

STATE EX REL. ALLIS

v.WIESNER ET AL.

Supreme Court of Wisconsin.

June 22, 1925.

Application for writ of prohibition by the State, on the relation of Louis Allis, against John M. Wiesner and others. On motion to quash the writ. Writ granted.

The sections of the Milwaukee City Charter (chapter 6) mentioned in the opinion are as follows:

Section 3. (Chapter 227, 1879; chapter 524, 1887.) The common council shall thereupon by resolution, direct the city engineer to make and file with the city clerk an accurate survey and plat of the proposed change or improvement and of the lands proposed to be taken therefor, defining separately each parcel and indicating upon such plat the location of any improvements upon said premises, and said city clerk shall return said plat and survey to the common council. The common council shall thereupon direct the city clerk to cause notice of such application or resolution to be given to owners and occupants of the lands proposed to be taken, which notice shall contain a description of the lands proposed to be taken, and shall state that at a certain time and place therein named, which time shall not be less than four weeks after the first publication thereof, application will be made to the circuit or superior court of Milwaukee county or to the judge of either of said courts for the selection of a jury to view said premises and to determine whether or not it is necessary to take said premises for the purposes specified in said petition or resolution. Such notice shall be published in the official papers of said city for four weeks, at least once in each week, prior to the time therein fixed for the appointment of jurors, and shall be served at least twenty days prior to the time therein fixed for the appointment of jurors, upon each of the owners and occupants of the land proposed to be taken, residing in the city of Milwaukee and known as it shall appear by the petition or resolution, personally by delivering to and leaving with him a copy of such notice if he can be found in the city of Milwaukee, and if he cannot be found in said city, then by leaving a copy of such notice at his usual place of abode with some member of his family of suitable age and discretion, or if such place of abode shall be closed, or no person of suitable age and discretion found there, then by posting a copy of said notice on the principal outer door of such place of abode. Such service shall be made by the chief of police or some police officer of said city, who shall make return under oath, in writing, of the facts of such service, which return shall have the same effect as a sheriff's return of the service of a summons in a civil action. As to unknown owners of such land proposed to be taken, and owners, not residing in the city of Milwaukee, such publication in the official paper shall be a sufficient service of such notice upon them. At the time and place fixed for such hearing and upon the presentation of such application or of such resolution and upon proof of the publication and service of the notice hereinbefore required, the said court or the judge thereof, shall thereupon make a list of twenty-four reputable freeholders, residents of the city of Milwaukee, but not residents of the ward in which the premises proposed to be taken may be situated, and not interested in the result of such taking. The said court or judge shall thereupon hear and decide any challenge for cause or favor made, as to any of said freeholders and if sustained shall replace the name with an unobjectionable juror, until the list shall be perfected. Thereupon, under the direction of such court or judge, each party, the city of Milwaukee by its representatives, constituting one party, and the owners of land or their agents present, or if none be present or they disagree a disinterested person appointed by the court or judge, constituting the other party, shall challenge six names, one at a time alternately, the city beginning. To the twelve jurors remaining such court or judge shall issue a precept requiring them at an hour and day named, not more than fifteen nor less than three days thereafter, to appear before him to be sworn and serve as a jury to view lands, and at the same time shall publicly adjourn the proceedings to the time and place so named; such precept shall be served by the chief of police or any police officer of the city of Milwaukee at least one day before such appointed time, by reading the same to each such juror, or by leaving a copy of such precept at his usual place of abode in said city, in the presence of a member of his family. The jurors summoned shall appear at the time and place named, and if any be excused by the court or judge, or fail to attend, he shall publicly adjourn the proceedings to some time and place and name other disinterested freeholders, not residents of the ward in which the premises proposed to be taken or vacated are situated, in their stead to be forthwith in like manner summoned, and to appear at the time and place fixed by said adjournment until twelve jurors shall be obtained. The said jurors shall thereupon, before they proceed to view the premises proposed to be taken or vacated, severally take and subscribe an oath or affirmation before the court or judge, to the effect that they will faithfully and honestly discharge the duties imposed upon them, and determine whether or not it is necessary to take or to vacate the premises in question for the public use designated in the application or resolution. The court or judge shall then issue an order in writing, directed to said jurors, requiring them within thirty days from the date thereof, to view said premises, to be specified in such order, and to make return under their hand to the common council whether or not, in their judgment, it is necessary to take or to vacate said premises for the purposes specified in such application or resolution. It shall be the duty of every person appointed as such juror to act, unless excused for reasonable cause by the court or judge thereof appointing him, and every person duly summoned or notified to act as required by this chapter, who shall, without being so excused, neglect or refuse to perform his duty as such juror, shall be guilty of a misdemeanor, and shall, upon conviction thereof, be fined not less than twenty nor more than one hundred dollars; and it shall be the duty of the city attorney to prosecute any person so offending.

Section 3a. (Section 926--6, Stats. 1911; chapter 198, 1895.) Whenever in any such city the requisite number of jurors shall have been summoned to appear before any court or judge to be sworn and serve as a jury to view lands for the purpose of determining the necessity of taking the same for public use, or vacating any highway, streets, alleys or public grounds, and part of them shall have appeared before said court or judge for the purpose of taking the proper oath or affirmation and others shall fail to attend or to be excused, the court or judge shall forthwith appoint the requisite number of other qualified jurors to serve in the place of such so excused or failing to attend. Any juror so appointed may be examined by any person present and interested in such taking or vacating, and if it shall appear to the court or judge that any such juror or jurors are disqualified to act he or they shall be excused and a number of other jurors shall be thereupon appointed until the requisite number shall be obtained; and the said jurors shall, before they proceed to view the premises proposed to be taken or vacated, severally take and subscribe on oath or affirmation before the court or judge that they will faithfully and honestly discharge the duties imposed upon them and determine whether or not it is necessary to take or vacate the premises in question. Whenever any such jurors shall have met for the purpose of hearing persons interested and some of such jurors are absent at the time set for such hearing and for one hour thereafter, the jurors present shall have power to publicly adjourn to the same place for a period not exceeding twenty days, and the city attorney shall report the names of such absent juror or jurors to some police officer of the city, together with the place and the hour to which such jury has adjourned, and such police officer shall thereupon notify said absent juror or jurors of such adjournment and direct them to be present at the time and place fixed at the time of such adjournment.

Section 4. (Chapter 311, 1876; chapter 227, 1879; chapter 524, 1887.) The said jurors when so selected and sworn, shall immediately proceed in a body to view the premises proposed to be taken or to be vacated, and the city engineer or his deputy shall, upon the request of the city attorney proceed with said jury to said premises and point out to said jurors the several places where the lines of the proposed improvement are located according to the survey hereinbefore directed to be made. The city attorney shall thereupon prepare a notice in the following or some equivalent form:

In the matter of the application for the (opening, extension, enlarging or widening, as the case may be) of _____, in the _____ ward of the city of Milwaukee.

Notice is hereby given that the jurors lately appointed and summoned in the above matter, to pass upon the question of the necessity of taking the lands described in said application for the purposes therein prayed, have viewed said lands, and will meet at _____ on the _____ day of _____, A. D. _____, at which time and place all persons having any interest in the lands proposed to be taken may be heard before such jurors, and all evidence proposed to be taken may be heard before such jurors, and all evidence produced before them upon said question will be considered.

Dated at Milwaukee, the _____ day of _____, A. D. _____.

________, City Attorney.

Such notice shall be...