State ex rel. Clancy v. McGovern

• Citation: 76 N.W. 593,100 Wis. 666
• Parties: STATE EX REL. CLANCY ET AL. v. MCGOVERN, VILLAGE CLERK.
• Decision Date: 11 October 1898
• Court: United States State Supreme Court of Wisconsin

100 Wis. 666

76 N.W. 593

STATE EX REL. CLANCY ET AL.

v.MCGOVERN, VILLAGE CLERK.

Supreme Court of Wisconsin.

Oct. 11, 1898.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Certiorari, on the relation of James Clancy and another, against Thomas McGovern, as village clerk, to review the proceedings of the trustees of South Milwaukee, wherein a certain road was vacated. From a judgment for respondent, relators appeal. Affirmed.

The relators, by their relation filed July 8, 1897, allege that they owned certain lots in the town site of South Milwaukee, abutting upon the highway called “Chicago Road,” and that on the 11th of February, 1893, Fred Heidelburg and five other persons, whose names are given, pretending to act as village trustees of the village under the name of “South Milwaukee,” made an order vacating a part of said Chicago road pursuant to certain proceedings had before them; that such proceedings were in the custody of the defendant McGovern, village clerk of the so-called village of South Milwaukee; and that the same were void for the following reasons: “(1) That the said parties so attempting to act as a village board and as such village clerk were not the officers they claimed to be because the so-called village of South Milwaukee had never been legally incorporated, nor had any legal existence as a village, nor power nor authority to elect trustees, nor the said clerk and the said clerk and trustees had never been elected to or qualified as trustees of a legally incorporated village. (2) That no petition for the vacation of the said highway was presented to and acted upon by the board having authority to act in that behalf; that the notice required by law of the hearing upon an application to vacate said streets was never given. (3) That the order required by law for the vacation of said highway was not made by any duly-constituted authority. (4) That the highway so attempted to be vacated was what is known as a government road, and had been in existence for over fifty years as such. (5) That no notice of the application or hearing to vacate said highway was given to your affiants, or either of them.” Upon this relation a writ was issued to McGovern, as village clerk of the village of South Milwaukee, and thereafter he made a return, showing that certain proceedings for vacation of a part of the Chicago road were had before the board of trustees of South Milwaukee, which culminated on the 21st day of February, 1895, in the passage of a resolution vacating a part of said road. The return further showed that since the service of the writ upon him the said village of South Milwaukee had been organized into a city of the fourth class, and no longer existed as a village. After the return, and at a subsequent term of court, the defendant filed a written motion to quash the writ for three reasons: (1) That before the service of the writ he had ceased to be village clerk, and the said village had ceased to exist; (2) that the relation did not set forth facts sufficient to authorize the issuance of the writ; and (3) that more than two years had elapsed from the time of the vacation of the highway to the time of the application for the writ. Upon the hearing of this motion the relators filed affidavits seeking to excuse the delay in applying for the writ by showing that at the time of the vacation of the highway their property appeared by a plat of South Milwaukee not to abut upon the Chicago road, but that two lots apparently intervened between their property and the said Chicago road, but that they were then engaged in litigation with the owners of said intervening lots, claiming that said lots had been dedicated to the public as a highway, and were in fact a part of said Chicago road; and that said litigation did not terminate until the month of January, 1897,...