State ex rel. Kulike v. Town Clerk of Lebanon

• Decision Date: 21 May 1907
• Parties: STATE EX REL. KULIKE v. TOWN CLERK OF TOWN OF LEBANON, DODGE COUNTY.
• Court: Wisconsin Supreme Court

132 Wis. 103

111 N.W. 1129

STATE EX REL. KULIKE

v.TOWN CLERK OF TOWN OF LEBANON, DODGE COUNTY.

Supreme Court of Wisconsin.

May 21, 1907.

Appeal from Circuit Court, Dodge County; James J. Dick, Judge.

Certiorari by the state, on the relation of Alwina Kulike, to review the action of the supervisors of the town of Lebanon, Dodge county, in laying out a highway. From a judgment denying a motion to quash the writ and adjudging that the proceeding of the board of supervisors was illegal, the town clerk appeals. Reversed and remanded, with instructions to quash the writ.

This is a certiorari proceeding to review the action of the supervisors of the town of Lebanon, in the county of Dodge, Wis., in laying out a highway in said town. The writ was issued on the petition of Alwina Kulike, respondent, setting forth certain alleged defects in the proceedings, and directed to the town clerk of said town. The appellant, town clerk, before return, moved the circuit court out of which the writ issued to quash the writ. The motion to quash was denied, and in the same order denying it the court adjudged and decreed that the proceedings and decision of the board of supervisors of said town were illegal and void, and further adjudged and decreed that such proceedings be set aside and vacated with $10 costs of motion. The appellant, town clerk, appealed from this order.M. L. Lueck and J. G. Bachhuber, for appellant.

Schwefel & Knoell, for respondent.

KERWIN, J. (after stating the facts).

The first question presented, and the one which is decisive of this appeal, is whether the writ was properly directed. Respondent insists that it should run to the town clerk, and not to the supervisors, and bases his contention mainly upon Milwaukee I. Co. et al. v. Schubel, 29 Wis. 444, 9 Am. Rep. 591;Williams v. Yorkville, 59 Wis. 119, 17 N. W. 546;State ex rel. Gordon v. McNay et al., 90 Wis. 106, 62 N. W. 917;State ex rel. Hewitt v. Graves, 120 Wis. 607, 98 N. W. 516; and Rude v. St. Marie, 121 Wis. 634, 99 N. W. 460. In Milwaukee I. Co. v. Schubel, the writ of certiorari was issued to bring up the proceedings of the town board of review, and it was held that the writ was properly directed to the town clerk, because he had the legal control and possession of the proceedings, and had at the time the writ was issued the legal custody and possession of the record. The board of review being a temporary and not continuing body passes out of existence as soon as it performs its functions, and the record of its proceedings remains with the clerk. Therefore he is the proper party to whom the writ should be directed. In Williams v. Yorkville, and State ex rel. Gordon v. McNay, the question of the action of the supervisors under the drainage law was involved, and this court held that the town supervisors in the exercise of their duties prescribed by such law were not acting for and on behalf of the town, but rather as public or governmental officers, or agents, in the exercise of police power conferred upon them by statute, in the exercise of which the town had no concern. True, in State ex rel. Hewitt v. Graves, the proceeding was by certiorari to review the action of the town supervisors in laying out a highway, and the writ was directed to the town clerk, but it appears in this case that the question of whether the writ was properly directed or not was neither raised nor considered, therefore cannot be regarded as authority upon the question. In State ex rel. Gordon v. McNay the proceeding was under section 1365, St. 1898, and therefore it was held that the supervisors were acting as governmental officers, charged with the execution of police powers, and not acting on behalf...