State ex rel. Shawano County v. Sexton ( 1905 )

The following opinion was filed January 10, 1905:

Siebeciceb, J.

The defendant demurred to the petition upon several grounds, but submitted argument on the general demurrer only, suggesting that it is desired to test the sufficiency of the grounds upon which relief is sought by assuming that it is the duty either of the town of Belle Plaine alone, or of the towns of Belle Plaine and Waukechon jointly, to keep this bridge in the proper state of repair for public travel. We shall therefore confine ourselves to the sole question, Does the petition, under such assumption, allege facts sufficient to constitute a cause of action for the relief demanded ?

The contention is made that it is not shown that the road in question is a town-line road. True, there is no allegation that the requisite steps under secs. 1272, 1273, Stats. 1898, were taken to lay out this highway as a town-line road. It is, however, alleged that the highway has by user and working become a public highway, and that it is situated as near the town line as the nature of the ground will permit, thus giving it the location of a town-line road. Under the provision of sec. 1273 which declares that any bridge on such highway which “has not been assigned to either of the adj acent towns, shall be repaired and maintained by such towns and the cost of repairs and maintenance shall be paid by them in proportion to the valuation of the property therein as equalized by the county board or boards at the last equalization,” it devolved upon the adjoining towns to repair and maintain the bridge. It is also alleged that the towns kept this road in repair jointly from 1892 to 1900. Under these circumstances the allegation must be held sufficient to charge, if the road reverted under the resolution of the county board (which question we do not decide), that the repair and maintenance of this bridge devolved upon these towns.

The town of Waukechon asserts that, if the duty to repair and maintain this bridge jointly with the town of Belle Plaine fell upon it, no grounds are alleged rendering it liable for the amount charged against it by the county. The petition states that the town of Belle Plaine asked to have the bridge built by county aid, as provided by sec. 1319, Stats. 1898, but this proceeding wholly failed, for none of the necessary conditions prescribed by this section to give the county jurisdiction to extend aid to towns in tbe repair and construction of bridges were fulfilled by tbe towns; nor is any way suggested by wbieb tbis object could be accomplished without tbe concurrent action of tbe two towns liable for its maintenance.

Tbe authority conferred upon counties to repair certain roads, under sec. 1311, Stats. 1898, is also claimed to support tbe claim. Tbis section clearly cannot be relied upon, for by it counties are given authority, upon certain conditions, to open and repair state and county roads in cases where towns, cities, or villages neglect or refuse to open or repair them as required by law. It is not shown, nor does relator, tbe county, or tbe defendant in tbis action claim, that tbis -is a state or county road, to be kept in repair by tbe towns through which it passes; hence no grounds exist for recovery under tbe provisions of tbis section.

Tbe only statutory provision under which tbe county can assert any right to tbe relief demanded is sec. 1338, which provides, in effect, that if any town, either by its proper officers or a majority vote of its electors voting on such question, shall refuse to repair any public highway or bridge in such town, any fifteen freeholders may appeal from such decision to the county board, and thereupon the county board shall examine such highway or bridge, and, if they shall determine that it ought to be repaired, the chairman of the county board shall cause it to be repaired, and keep an accurate account' of the expense thereof, which, when audited and allowed by the county, shall be charged to such town and added to the next county tax apportioned thereto and collected therewith. The petition is fatally wanting in several respects to inept the conditions of this statute as the basis for the county’s claim. It does not appear that any action or vote was ever taken by the town officers or its electors at a town meeting in reference to repairing or rebuilding this bridge; and, again, it is not alleged from what decisions, if any, an appeal was taken, nor wbat steps were actually taken to perfect such an appeal. While it is alleged that the county board appointed a committee of three of its members to examine the bridge for the purpose of determining whether it needed repairs, it does not appear that this committee made the required examination and determination that the bridge ought to be repaired. Another condition of the statute is that, if repairs are decided to be undertaken by the county, the chairman of the county board shall cause them to be made, and shall keep an accurate-account of the expense thereof, which shall be audited by the county board; while the petition states that the rebuilding of the bridge was in charge of, and carried out conjointly by, the chairman of the county board, its committee, and the town board of the town of Belle Blaine. This is clearly no compliance with the essential requirements of this statute. Nor is it anywhere alleged that the amount sought to be collected as expense for restoring this bridge from the town of Waukechon is apportioned between it and the .town of Belle Blaine in proportion to the valuation of the property in these towns, as equalized by the county board at its last equalization. The failure to comply with all of these statutory requirements and provisions in attempting to charge the town of Waukechon with a portion of the cost of restoring this bridge is fatal to this action.

We are of the opinion that the trial court ruled correctly in holding that Shawano county had no jurisdiction to levy the tax in question, and that the judgment dismissing the petition and the alternative writ of mandamus was properly awarded, with costs. .

By the Court. — The order and judgment ai*e affirmed.

A motion for a rehearing was denied March 14, 1905.

KebwiN, J., took no part.