Morris v. Ferguson, 14 Wis. 266

Morris v. Ferguson

14 Wis. 266 | Wis. | 1861

By the Court,

Cole, J.

This was a common law writ of certiorari, issued out of the circuit court of Racine county, directed to the defendants in error as supervisors of the town of Caledonia, for the purpose of reviewing their proceedings in laying out a highway. It appears from the record that the circuit court dismissed the writ for want of jurisdiction to hear and determine the same. The general *268power of tbe circuit courts of this state to issue common law of certiorari, would not probably be questioned. Both the constitution and statute give them power to award this and it has frequently been exercised in this state. Sec. 8, Art. YII, Constitution; sec. 4, chap. 116, B. S. But while the jurisdiction of the circuit court to award the writ in a proper case would probably not be controverted, it is claimed that this is not such a case. It is contended that the only remedy of a party aggrieved by the errors or mistakes of supervisors in laying out highways, is by an appeal to commissioners under the provisions of chap. 19, B. S.

We do not suppose the intention of the statute was to give the commissioners power to review and reverse the decision of the supervisors for errors of law. The commissioners are confined, on the appeal, to an examination of the case upon the merits — that is the necessity or propriety of laying out the road, assuming all the previous steps taken to have been regular. They are not to review legal questions, or irregularities which might exist in the preliminary steps. See the cases of Lawton et al. vs. The Commissioners of Highways of Cambridge, 2 Caines, 179, and The Com’rs &c. of Warwick, vs. Judges of Orange Co., 13 Wend., 432; State ex rel. Doxtader vs. Bailey et al., 6 Wis., 291. Any irregularities or legal questions growing out of the proceedings of the supervisors in laying out the road, might be reviewed and corrected by a common law writ of certiorari, provided they appeared upon the record or in the return. But the court will not, upon a common law writ of certiorari, go beyond defects appearing upon the record, and review questions of fact. Stokes vs. Knarr, 11 Wis., 389; Allyn vs. The Com'rs &c. of Schodack, 19 Wend., 342; The People vs. Covert, 1 Hill, 674. Now the difficulty with this case is, that the return of the supervisors shows no want of jurisdiction, nor any irregularities in their proceedings. And the errors of which the plaintiff in error complains cannot be reached by this writ, for the simple reason that we cannot go into a review of matters of evidence. We are confined to the defects appearing upon the return. It is objected that the supervisors had no authority to proceed and *269lay out tbe road, because tbe petition fo.r tbat purpose was not signed by at least six freeholders, and. tbat a proper tice was not given of tbe time wben tbey would meet and decide upon tbe application. Tbe return of tbe supervisors shows none of these defects. Tbey have returned a petition which purports to be signed ]jy six freeholders. Tbey give, too, tbe notice which tbey caused to be served upon tbe parties interested, of tbe time and place wben and where tbey would meet and decide upon tbe application. It is'said tbat it did not appear tbat tbe notice was.served upon all tbe occupants through whose'lands tbe road might pass. But all these things are matters of fact which tbe circuit court could not reach and inquire into upon this writ. They-might be inquired into in an action of trespass for laying out and opening this highway, or in any proceeding where tbe question of tbe legal existence of the road could be determined.

Another question desired to be reached by tbe writ is, whether the supervisors of Caledonia could lay out tbe highway, tbe same having, as is contended, been previously laid out by tbe supervisors of Orwell before tbe division of tbe town. But obviously the defendants in error can make no return in reference to tbe action of the supervisors of Orwell. How could tbey possibly have any knowledge of tbat matter, except from hearsay ?

We think, therefore, the circuit court should not have dismissed tbe writ of certiorari for want of jurisdiction, but have proceeded and acted upon the return. We have already stated tbat upon tbe return we see no errors or defects which would authorize tbe circuit court to reverse tbe action of tbe supervisors. If such errors of law exist, tbey can only be shown by .matters dehors tbe return. ■■ And this shows tbat tbe plaintiff in error mistook bis remedy in supposing tbat be could reach those questions by a common law writ of certiorari.

Tbe order of tbe circuit’ court is reversed, and tbe cause remanded for further proceedings in accordance with this decision.