State ex rel. James L. Callan, Inc. v. Barg

• Decision Date: 08 April 1958
• Citation: 3 Wis.2d 488,89 N.W.2d 267
• Parties: STATE ex rel. JAMES L. CALLAN, Inc., Respondent, v. Vernon BARG, as Clerk of the City of Franklin, a municipal body corporate, Appellant.
• Court: Wisconsin Supreme Court

Page 267

89 N.W.2d 267

3 Wis.2d 488

STATE ex rel. JAMES L. CALLAN, Inc., Respondent, v. Vernon BARG, as Clerk of the City of Franklin, a municipal

body corporate, Appellant.

Supreme Court of Wisconsin.

April 8, 1958.

William H. Bowman, Milwaukee, for appellant.

Charles L. Goldberg and Francis X. Krembs, Milwaukee, for respondent.

MARTIN, Chief Justice.

A motion to quash a writ of mandamus is tantamount to a general demurrer (sec. 293.01, Stats.), and presents the sole issue as to whether or not there is any ground for the relief requested. As stated in State ex rel. Leuch v. Hilgen, 1951, 258 Wis. 430, 431, 46 N.W.2d 229, 230:

"The motion [to quash] is in the nature of a demurrer, and ordinarily is dependent for its effectiveness on grounds stated in the motion. It cannot be aided by allegations of fact, and, like a demurrer, admits all facts which are well pleaded for the purpose of the motion, and it raises the issue whether any ground for relief is stated.' 55 C.J.S. Mandamus § 290, pp. 525, 526.'

Sec. 236.11(2), Stats., providing for the submission of plats for approval, reads as follows:

'The body or bodies having authority to approve plats shall approve or reject the final plat within 60 days of its submission, unless the time is extended by agreement with the subdivider. If a plat is rejected, the reasons therefor shall be stated in the minutes of the meeting and a copy thereof or a written statement of the reasons supplied the subdivider. If the approving authority fails to act within 60 days and the time has not been extended by agreement and if no unsatisfied objections have been filed within that period, the plat shall be deemed approved, and, upon demand, a certificate to that effect shall be made on the face of the plat by the clerk of the authority which has failed to act.'

The petition alleges approval of the final plat by the State Regional Planning Department, the State Highway Commission and the State Board of Health, and that there are no unsatisfied objections. It further alleges the prior submission of preliminary and amended preliminary plats to the governing body of the Town of Franklin prior to its incorporation as a city and to the city authority during the years 1955 and 1956, and that there were conferences between the petitioner and such authorities pursuant to which modifications to the plat were made on all exceptions noted.

Appellant contends the petition is defective in that it does not allege that the plat complies with all municipal requirements, referring to sec. 236.13(1), Stats., which provides that approval of the final plat shall be conditioned upon compliance with any municipal ordinance.

Under sec. 236.11(2), Stats., it is the duty of the common council to act upon a final plat either to approve or to reject it, within sixty days of its submission. The performance of such duty clearly involves examination of the plat to determine whether or not it complies with municipal requirements. We must assume, for the purposes of this decision on the motion to quash, that if there was any noncompliance, the common council would have rejected the plat within the time set by the statute and have advised the petitioner thereof, as required by sec. 236.11(2). There is the presumption, in the absence of evidence to the contrary, that public officers have properly discharged the duties of their office. See Marshall Drainage Dist. v. Festge, 1956, 272 Wis. 114, 118, 74 N.W.2d 616, and cases there cited.

The plat was neither approved nor rejected within the sixty-day period; the time was not extended by agreement; there were no unsatisfied objections filed within that period. When those circumstances exist the direction of the statute is explicit,--'the plat shall be deemed approved, and, upon demand, a certificate to that effect shall be made on the face of the plat by the clerk of the authority which has failed to act.' What is required of the clerk is simply the ministerial act of certification, and mandamus lies to compel such act. Marshall Drainage Dist. v. Festge, supra.

Appellant further contends that if sec. 236.11(2), Stats., requires approval by default of a plat which violates municipal ordinances, it is unconstitutional. The question does not arise since we cannot assume that the plat violates any ordinances. As pointed out above,...