State ex rel. Witte v. Curtis

• Decision Date: 17 October 1893
• Citation: 86 Wis. 140,56 N.W. 475
• Parties: STATE EX REL. WITTE v. CURTIS, TOWN CLERK.
• Court: Wisconsin Supreme Court

86 Wis. 140

56 N.W. 475

STATE EX REL. WITTE

v.CURTIS, TOWN CLERK.

Supreme Court of Wisconsin.

Oct. 17, 1893.

Appeal from circuit court, Jefferson county; Robert G. Siebecker, Judge.

Certiorari on the relation of August Witte to Mark Curtis, town clerk of the town of Hebron, for review of a certain order and proceedings of the supervisors filed in his office. From a judgment declaring the order void, said town clerk appeals. Affirmed.

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

In attempted compliance with chapter 54, Rev. St., and the several acts amendatory thereof, the supervisors of the town of Hebron made and filed in the office of the town clerk of that town an order laying out and establishing a town ditch therein, located partly upon the lands of the plaintiff, August Witte. He thereupon sued out a writ of certiorari, directed to such clerk, to remove the order and proceedings of the supervisors into the circuit court for review. That court reversed the order of the supervisors laying out and establishing such ditch, and adjudged such order to be null and void. The defendant, the town clerk, appeals from the judgment of the circuit court.Kinnie & Curtis, for appellant.

L. B. Caswell, for respondent.

LYON, C. J., (after stating the facts).

Section 1359, Sanb. & B. St., authorizes the town supervisors to lay out and establish a ditch in their town only in cases in which, in their judgment, such ditch is demanded by, or will conduce to, the public health or welfare. When, therefore, the supervisors meet to decide an application to them to lay out and establish a ditch under the statute, the first question to be determined by them is whether, in their judgment, such ditch is demanded by, or will conduce to, the public health or welfare. If this question be determined in the negative, that is the end of the matter. In such case the supervisors have no jurisdiction to lay out or establish such ditch. But if it be determined in the affirmative, then they have jurisdiction, and it becomes their duty to lay out and establish the same. In determining this question the supervisors act in a quasi judicial capacity, and their determination of it is their judgment in the premises which determines their authority or want of authority to lay out and establish the ditch; that is to say, it determines the question of their jurisdiction to act in the premises. The board of town supervisors is, of course, an inferior...