State ex rel. Milliren v. Varnum

'LyoN, 0. J.

Had the proceedings subsequent to the laying out of the highway, which resulted in the refusal of the •town meeting to approve and accept such highway, been regular, or had they been irregular only in matters which do not go to the jurisdiction of the justice before whom the appeal proceeding was instituted, probably the validity of such proceedings might be sustained. If sustained, it is clear that no peremptory mandamus could issue to compel the supervisors to lay out and open the highway, for the reason that the negative vote of the town meeting would have deprived the supervisors of power to do so. Such is the express provision of ch. 289, Laws of 1885. S. & B. Ann. Stats, sec. 1291.

But the record discloses at least two defects in the proceedings on the appeal from the award of damages which go to the jurisdiction of the justice over the subject matter of the proceedings, thus depriving him of power to make a jury list or summon a jury, and consequently depriving the jury of power to make a valid award.

Sec. 1285, R. S., provides that the application to the county judge or a justice of the peace for a jury to assess and appraise such damages “ shall be made in writing, describing the premises.” In this case the application was to a justice ■ of the peace. The record contains no written application. It is stated in the amended return that it was in writing, but the recitals of such application in the notice to the supervisors of the selection of the jury, and in the process for summoning the jury, attached to the amended return, fail to state that such application was in writing. It is quite probable that the court would be justified by this condition of the record in holding that there is no sufficient averment that the application was in writing. Rut, however that may be, there is no allegation in the amended return, or in any of the proceedings annexed thereto, that the premises over which the highway was laid was described in 'such application.

Again, the same statute requires the person thus appealing to serve on the supervisors a notice in writing, among other things, of the time and place when and where application will be made to the justice, etc., “ at least six days before the time fixed for making such application.” In this case the notice is dated, and was served on the supervisors, March Ith, and the application was noticed for, and in fact-made, March 12th,— being only five days thereafter.

Compliance with the above requirements is a condition precedent to the authority of the justice to make a jury list or issue process to summon a jury, and to the power of the jury to make a valid appraisal of damages. • This want of jurisdiction goes to the subject matter, and is not cured by the voluntary appearance of the supervisors before the justice. These propositions are fully established by the Cases of Burns v. Spring Green, 56 Wis. 239, and State ex rel. Foster v. Graham, 60 Wis. 395. We are aware of no decision of this court to the contrary.

The supervisors having assessed damages at less than $250, and the proceedings to increase such assessment being void, the vote of the town meeting is of no importance. The highway is legally laid out and established, and the damages assessed by the supervisors a legal charge against the town.

The amended return of the supervisors fails to show any sufficient reason for not opening the highway, although it does show that they have laid out and established the same. Hence, the demurrer thereto was properly sustained, and the order in that behalf must be affirmed.

By the Court.— Order affirmed.