State ex rel. Tibbits v. City of Milwaukee

• Decision Date: 28 November 1893
• Citation: State ex rel. Tibbits v. City of Milwaukee, 86 Wis. 376, 57 N.W. 45 (Wis. 1893)
• Parties: STATE EX REL. TIBBITS v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 376

57 N.W. 45

STATE EX REL. TIBBITS

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Nov. 28, 1893.

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

The state, at the relation of George M. Tibbits, brought certiorari against the city of Milwaukee and George R. Mahoney, city clerk, to review certain assessments. Writ dismissed. Relator appeals. Affirmed.

The other facts fully appear in the following statement by PINNEY, J.:

A writ of certiorari was allowed and sued out of the circuit court for Milwaukee county, on the relation of George M. Tibbits, to review and reverse and set aside, for alleged illegality, certain proceedings of the common council of the city of Milwaukee, in opening, widening, and extending Kane place from Prospect avenue to Summit avenue, in the Eighteenth ward in said city, and confirming the report of damages for property taken for that purpose, and the assessment of benefits upon property alleged to be benefited thereby. The relator was the owner of certain lots assessed for such benefits. The writ was directed to “the city of Milwaukee and George R. Mahoney, as city clerk,” etc., and was superseded and vacated by the circuit court because it was not directed to the proper party. From an order to that effect, the relator appealed.David S. Ordway, for appellant.

Conrad Krez, for respondent.

PINNEY, J.

The circuit court could not review the proceedings mentioned in the writ in this case, for the reason that it was not directed to the body or board whose acts were sought to be questioned and reviewed by it. By section 1, c. 4, of the city charter of Milwaukee, it is provided that “the municipal government of the city shall be vested in the mayor and common council,” and the common council is a continuing body, (section 2, c. 4, City Charter,) and has the control of all its records and papers, while the city clerk has the custody thereof, and of the corporate seal, and is a mere ministerial officer, without any judicial or quasi judicial power. It is a general rule that the writ of certiorari cannot go to a mere ministerial officer, save in exceptional cases, as where the body or board whose acts are sought to be reviewed is not a continuing one, or has ceased to exist, and such ministerial officer has the proper custody of the record or proceeding sought to be reviewed. Such was the case of Iron Co. v. Schubel, 29 Wis. 444, explained in State v. Common Council of Fond du Lac, 42 Wis. 287, 294. The latter was a case identical with this in respect to the direction of the...