State ex rel. Cabott, Inc. v. Wojcik, 384

• Decision Date: 26 June 1970
• Docket Number: No. 384,384
• Citation: 177 N.W.2d 828,47 Wis.2d 759
• Parties: STATE ex rel. CABOTT, INC., Wis. corp., et al., Appellants, v. Joseph WOJCIK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 828

177 N.W.2d 828

47 Wis.2d 759

STATE ex rel. CABOTT, INC., Wis. corp., et al., Appellants, v. Joseph WOJCIK et al., Respondents.

No. 384.

Supreme Court of Wisconsin.

June 26, 1970.

This is an appeal from a judgment dated on January 5, 1970, in the circuit court for Portage county, quashing the petitioners' alternative writ of mandamus.

The petitioners alleged that they were residents and landowners in a subdivision known as the Second Addition to Maple Bluff Subdivision in the Town of Hull, Portage county, Wisconsin. The subdivision was platted and was approved by the Hull Town Board on February 26, 1969. Subsequently, according to the allegations of the petition, certain portions of the town roads leading into the subdivision have washed away and have become impassible. The allegation is made that the town road leading into the subdivision has been closed by the Town of Hull. Although demands have been made upon the town board to put the roads into a passable condition, this has not been done.

Petitioners claim that their lots have depreciated in value and that they have been damaged by the failure of the town board to act. They allege that, since the Town of Hull is without a superintendent of highways, responsibility for the duties of the superintendent of highways set forth in sec. 81.03, Stats., devolves upon the town board by virtue of the provisions of sec. 81.01(1).

The defendants, members of the town board, moved to quash the alternative writ on the ground that no reason in law was stated in the petition and that the petition failed to show that the property owners are entitled to the writ of mandamus.

The trial court granted the defendants' motion to quash and taxed costs against the petitioners.

The petitioners have appealed from the judgment which followed.

Peickert, Anderson, Fisher, Shannon & O'Brien, Stevens Point, for appellants.

Herman J. Glinski, Stevens Point, for respondents.

HEFFERNAN, Justice.

A motion to quash a petition is deemed by sec. 293.01, Stats., to be a demurrer to the complaint. Will v. Department of Health & Social Services of State of Wisconsin (1969), 44 Wis.2d 507, 512, 171 N.W.2d 378; State ex rel. Kurkierewicz v. Cannon (1969), 42 Wis.2d 368, 374, 166 N.W.2d 255. A petition for mandamus should therefore be given the same treatment that is afforded to a complaint when a demurrer is filed. It should be afforded every reasonable intendment when determining whether there is any ground for relief requested. Harte v. City of Eagle River (1970), 45 Wis.2d 513, 519, 173 N.W.2d 683; State ex rel. Leuch v. Hilgen (1951), 258 Wis. 430, 431, 46 N.W.2d 229.

We are satisfied that the petition spells out legal grounds for granting the petitioners' petition for a writ of mandamus. The Wisconsin court stated the criteria for the issuance of a writ of mandamus in the case of Neu v. Voege (1897), 96 Wis. 489, 492, 493, 71 N.W. 880, 881, wherein it was said:

'To be sure, the granting or refusing of a writ of mandamus is somewhat discretionary, but when the application therefor is made by a person to enforce a clear legal right; the duty sought to be enforced is positive and plain; the applicant for the writ shows that he will be substantially damaged by nonperformance of such duty, and there is no other adequate specific legal remedy for the threatened injury, and no laches on the part of such applicant, and no special reasons exist rendering a resort on his part to the remedy, under the circumstances, inequitable, to refuse to issue the writ constitutes an abuse of judicial discretion.'

More recently, we have considered the test for mandamus of a public officer or a public body corporate in Menzl v. City of Milwaukee (1966), 32 Wis.2d 266, 145 N.W.2d 198, and in Beres v. City of New Berlin (1967), 34 Wis.2d 229, 148 N.W.2d 653. Under the tests established therein, it appears that the petition for mandamus prima facie asserts a clear legal right, that the duty sought to be enforced is positive and plain and that the petitioners will be substantially damaged by the nonperformance of such duty.

Sec. 81.03, Stats., provides:

'81.03. Superintendent of highways; duties. The superintendent of highways shall supervise the construction and maintenance of all highways in his district required to be maintained by the town, and keep them passable at all times, and perform such other services in connection with said highways as the town board requires, and keep a full account of all his receipts and disbursements. He may make such arrangement for the prosecution of his work as he deems necessary and appoint such foremen as the highway work requires. When any highway under his charge becomes impassable he shall put the same in passable condition as soon as practicable. He shall make a complete and full report of all funds received and disbursed by him whenever requested so to do by the town board, and shall also make a complete and full report to each annual town meeting. The superintendent, and in his absence the town board, shall immediately upon notice of its existence fill or remove any depression, ditch, hump or embankment which impedes the use of any highway in his district.'

Sec. 81.01(1), Stats., provides in part:

'* * * Where no superintendent of highways is appointed, it shall be the duty of the town board to perform all the duties that are prescribed by law for the superintendent of highways to perform.'

It is our conclusion that these portions of the statute unequivocally place the duty upon a town board, where no highway superintendent has been appointed, to put any highway that becomes impassable in a passable condition as soon as practicable.

This is the very situation that is averred in the petition--that the road is a highway in the Town of Hull, that it is impassable, that due notice and demand has been made upon the board of supervisors of the town, but that no action has been taken to put the road in a passable condition.

Both the trial court and the defendants rely principally upon State ex rel. Wisniewski v. Rossier (1931), 205 Wis. 634, 238 N.W. 825. The Wisniewski Case held that there was no clear duty imposed by statute upon town boards to keep highways in repair. In addition, Wisniewski concluded that there was another remedy available in that sec. 81.14, Stats., provided for an appeal by 15 freeholders to the county board from the refusal, failure, or neglect to repair a town highway.

The petitioners pointed out that at the time Wisniewski was decided, sec. 81.01, Stats., which was amended two years later, did not provide that, in the event there were no superintendent of highways, the same duties rested upon the town board. The trial judge recognized this argument and appeared to agree with the petitioners that there now was a clear legal duty upon the town board to carry out the obligations imposed upon a superintendent of highways and that such obligation did not unequivocally exist at the time of the Wisniewski Case. Although he accepted this proposition arguendo, he relied upon the second portion of Wisniewski--that there continued to exist another adequate remedy under sec. 81.14. Sec. 81.14 reads in pertinent part:

'(1) If any town, or towns in case of a town line highway, either by the proper officers, or by a majority vote of the electors voting on such question, refuse, fail or neglect to open and put in reasonable condition for travel a highway, within one year from the date when it was laid out, or refuse, fail or neglect to repair any highway or build or...