State ex rel. Van Vliet v. Wilson , 17 Wis. 687 ( 1864 )

By the Court,

Cole, J.

(The first objection taken, that the relator does not in his relation state with sufficient distinctness and precision the facts establishing his right to a peremptory writ, we deem untenable. The relation is lengthy, and we shall not attempt to give a summary of its various allegations. It is sufficient to say that we consider them sufficient in form and substance.

Another ground relied on by the respondents to show that a peremptory writ should not be accorded to compel them to proceed and audit the amount of damages allowed the relator in consequence of laying out the highway over his land is, that it appears that the commissioner who assessed those damages were not all freeholders of the town, of Aztalan, and therefore that their award was null and void. The statute provides that if any owner of lands through which a highway shall be kid out by the supervisors, is not satisfied with the sum awarded for damages by such supervisors, he may, within thirty days after the filing of the award, apply to a justice of the peace of an adjoining town for a jury to assess and appraise the damages. Sec. 61, chap. 19, R. S. He is required , to serve upon two of the supervisors, at least sis days before the time fixed for making application for such jury, a notice in writing specifying therein the name of the justice to whom, and the time and place when and where such application will be made. Id. He is likewise required to file a bond conditioned as provided in section 72. It is made the duty of the justice, upon the filing of the bond, to make a list of fifteen disinterested freeholders of his town, not of kin to the owner of the lands ; and each party may object to five on such list. In the event that nonevof the supervisors are present, the justice is required to strike off five names for the supervisors, and issue his precept to a constable directing him to summon the five persons not objected to, to meet at a time and place specified and appraise the damages sustained by the laying out of the highway. Sec. 63. Thus it will be seen that notice in writing is required to be given the supervisors of the time and place of striking the jury or commissioners, and they certainly had in this case ample opportunity to be present and see that the persons selectéd to appraise the damages had all the qualifications required by statute. But suppose the supervisors, as' they did here, neglect or fail to attend at the striking of the jury, and, by inadvertence or mistake of the justice in preparing the list of names, persons are summoned to appraise the damages who are not freeholders. What is the consequence ? Does such error or mistake vitiate the whole proceeding, and render the award null and void ? It seems to us not. Of course, it is the clear duty of the justice to exercise care and caution in making out the list, and endeavor in all cases to select only such persons as possess the proper statutory qualifications. Yet we know that the justice is liable to fall into a mistake upon this point from the nature of the duty to be performed. After the exercise of all reasonable care and diligence, he may place upon the list persons who are not freeholders. This is perhaps unavoidable. What is the result ? Must the whole proceedings go for naught, and the award be declared void ? As already observed, the parties had notice of the time and place of striking this jury, and ample opportunity to be present when the selection was made. They could then have made their objections to persons on the list, and the justice would have had an undoubted right to correct any mistake he might have made. But no authority is given him to do so after the jury is selected. And this, with other considerations, has led us to the conclusion that the supervisors should have made their objections to the competency of the persons selected at the time the jury was struck, and, not having done so, must now be deemed to have waived them altogether. It appears to us that there is no hardship in this rule, and that any other would frequently work great injustice.

In this case there is considerable conflict of testimony as to when the objection was first taken, that certain persons on the jury were not freeholders and were therefore disqualified to act. Some of the witnesses have stated, in their affidavits, that it was after the jury was summoned but before they were sworn. while an equal number as positively swear that no objection was made until the jury had been sworn and proceeded to view the premises. It is not necessary for us to weigh these conflicting statements, and indicate which, on the whole, we regard as the more probable and correct, since they all agree that no objection was taken to the persons on the jury when it was struck, which was the time when it should have been made. The counsel for the respondents contended that the question here involved is analogous in principle to the case where a petition is presented to the supervisors for laying out a highway. In such a case this court has decided that the petition must be signed by the requisite number of freeholders, to give the supervisors jurisdiction. But we think a distinction exists between this case, where the jury are selected merely to appraise damages which result from the laying out of a highway, and one where a petition is presented which constitutes the foundation of a proceeding to divest an owner of bis estate. In tbe latter case the owner may well insist upon a strict compliance with the statute by the public authorities, in order to divest him of the use and enjoyment of his property. But after the land has been taken, and it becomes a question of damages, the matter is entirely different. Each party can then appear before the justice, and see that the persons selected to determine that question possess the statutory qualifications. And if they do not appear, and the justice, by mistake, selects a person not a freeholder of his town, this fact alone ought not to render the award null and'void.

A still further objection to granting the peremptory writ is, that the relator has a perfect right of action against the town of Farmington on the award, especially since the passage of chapter 286, Laws of 1861. This statute gives a party the right to bring his action against a town for the amount of damages awarded him upon laying out a highway, when the town board neglects or refuses to audit the claim. But notwithstanding this law, we think a peremptory writ should be awarded, to compel the town board to proceed and audit the amount allowed the relator by the jury or commissioners, and to take the proper steps to have the same collected. This is a clear legal duty, which the statute imposes upon them, and they offer no good reason why they should not perform it. In McCullough vs. The Mayor of Brooklyn, 23 Wend., 458, it was said by Judge BroNSON that “ although, as a general rule, a mandamus will not lie when the party has another remedy, it is not universally true in relation to corporations and ministerial officers. Notwithstanding they may be liable to an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions according to law.” See The People vs. Mead, 24 N. Y., 114; Regina vs. Southampton, 101 E. C. L., 4, and authorities there cited. Besides, if the relator should bring his action against the town and recover judgment, be would tben probably have to proceed by mandamus to compel the town authorities to levy a tax to pay it.

For these reasons we think the peremptory writ should be awarded.