State ex rel. Doxtador v. Bailey , 6 Wis. 291 ( 1858 )

By the Gowrt,

Cole, J.

It appears that the respondents in this case refused to proceed to view and examine the highway for the reason that there had been no written application for an appeal filed with the justice. Tire relator however states in his relation that he presented to the justice, Claxton, on the 14th of May last, a written application for such an appeal; and it seems that the justice acted upon an application for he issued the requisite notice to the supervisors, of the time and place of appointing the commissioners under the statute. The commission ers return in answer to the alternative writ of mandamus, that upon the adjourned day, that is, on the 3d of June, after they had taken the oath faithfully and impartially to discharge their duties as commissioners, the supervisors objected to their proceeding in the matter, because the application for their appointment had not been made in writing, and as no written application for the appeal was found among the papers in their possession, or in the possession of the justice, it appears the commissioners decided that their appointment was irregular and that they had no power or authority to act in the premises, and consequently refused to act. But certainly the respondents committed a great mistake when they attempted to determine and settle the question as to the regularity or legality of their appointment. Even if the alleged irregularity had intervened in the proceedings, the respondents were not justified in refusing to act. The law imposed on them a very plain duty —to proceed to view and examine the highway laid out by the supervisors, and the one altered, or discontinued, and to make return of their decision in the premises. They had no authority to say that the proceedings were irregular because an application for an appeal had not been made in writing, or for any other reason. "Whether their acts would be valid or not, in the absence of such written application, would be determined by another tribunal, some court of justice, when the question should be raised in that forum. The return of the respondent js entirely insufficient in law; it is therefore quashed, and a peremptory writ awarded, with costs, against the respondents.

Peremptory writ awarded.