State ex rel. Schroeder v. Behnke

• Decision Date: 24 April 1917
• Citation: 162 N.W. 443,166 Wis. 65
• Parties: STATE EX REL. SCHROEDER v. BEHNKE ET AL., TOWN BOARD.
• Court: Wisconsin Supreme Court

166 Wis. 65

162 N.W. 443

STATE EX REL. SCHROEDER

v.BEHNKE ET AL., TOWN BOARD.

Supreme Court of Wisconsin.

April 24, 1917.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Mandamus, on the relation of Henry Schroeder, against Henry Behnke and others as the Town Board of Excelsior, Sauk County, Wis. Judgment quashing writ, and plaintiff appeals. Reversed and remanded, with direction to award judgment directing issuance of peremptory writ.

This is an action of mandamus by Henry Schroeder as relator to compel the town board of Excelsior to open up a new road as laid out by commissioners appointed by the county court of Sauk county. Henry Schroeder and five other residents of Excelsior petitioned the town board of Excelsior to lay out a road and discontinue a part of an old one in the town of Excelsior. The petitioners state that the old road, on which is a bridge, spanning a creek, was built by the town with county aid, and that this old road is so hilly and steep that it is dangerous for public use, and that the new road could be built somewhat shorter than the old, and would contain less dangerous grades. The town board denied the application, upon the ground that the board had no jurisdiction to discontinue the old road, because the bridge thereon was built by county aid. The petitioners appeal from this order to the county court of Sauk county, which appointed commissioners to review the order. The town board objected to the jurisdiction of the commissioners, on the ground that the board was without authority under the prohibition contained in section 1265, R. S. Wis.

The commission reversed the order of the town board, and ordered the new road to be laid out and the old one to be discontinued. The commissioners also declared that the new road be laid out “regardless of the fact whether the highway asked to be discontinued be discontinued or not” for want of power to do in this proceeding. The town board refused to open the new highway as laid out by the commissioners, and moved to quash the writ of mandamus to compel to do so.

Judgment was entered by the court quashing the writ of mandamus, and awarding to the respondents their taxable costs and disbursements.

The plaintiff appeals from the judgment.Grotophorst, Thomas, Rieser & Quale, of Baraboo, for appellant.

Stone & Quimby and H. N. Winchester, all of Reedsburg, for respondents.

SIEBECKER, J. (after stating the facts as above).

[1] The ruling of the trial court to the effect that the town board had no jurisdiction in the matters presented by the petition of the resident freeholders of the town for laying out a new road and discontinuing an old one was based on the grounds that the town board, under the provisions of section 1265, Stats., as amended by chapter 605, Laws 1911, had no “power or authority to alter, change, or discontinue * * * any highway or portion thereof which shall have been improved by the county board by the expenditure thereon of county money.” The court held that the old portion of the road in question was improved by the county board within the calls of this statute. The fact is undisputed that the existing bridge over the creek on this old road was constructed by the town, and that the...