State ex rel. Fenelon v. Graffam

74 Wis. 643 | Wis. | 1889

Taylor, J.

After a careful consideration of all the facts stated in the petition for a writ, we are clearly of the opinion that the circuit court properly refused to grant the same, first, for the reason that the former boards of supervisors proceeded to take action upon the original petition presented to them in 1884; that, such action having been taken upon such petition, the petition has performed its functions, and, although the proceedings taken under it by the supervisors have been adjudged void, such petition cannot now be used to inaugurate new proceedings thereon, after the lapse of nearly four years.

We are also of the opinion that the statute contemplates that, upon the presentation of the petition required by law, the supervisors are bound to take action in a reasonable time, and, if they do not take such action, those interested must, within a reasonable time, proceed to enforce such action; that the petitioners cannot lay by for three or four years, and then ask the courts to enforce action by the supervisors. Such delay would be laches on their part, especially in the absence of any proof that, in the mean time, there has been no change of ownership of the lands in question, and of any proof that the original petitioners are still the majority of the resident owners and desirous of having the proceedings inaugurated.

If it be urged that the-petitioners should not be charged with laches in this case, because they had reason to believe that the proceedings commenced by the former supervisors were in all respects regular, and they commenced this proceeding immediately upon their learning that such proceedings were irregular and void, still the objection to compelling the present supervisors to act upon the petition is the same as if no action had been taken by the former supervisors, unless it be shown that the situation in 1888 is the same in regard to the ownership of the lands. It seems to us almost too plain for argument that if the petitioners had presented to the supervisors in June, 1888, a petition setting forth that the petitioners were a majority of the resident owners of the lands sought to be drained in 1884, and omitting wholly to state who were the owners in 1888, when the petition was presented, no court would be justified in ordering the supervisors to act upon such petition. The attempt to compel the supervisors now to act upon the petition of 1884 is, we think, equally objectionable.

There is another objection to granting the writ in this case. The petition for the writ, and affidavits accompanying the same, fail to show that duplicate petitions were ever made and presented to the supervisors of the respective towns, either in 1884 or in 1888. Sec. 1365, E. S., under which this proceeding was inaugurated, provides that a majority of the resident owners must “ make an application in writing, in duplicate, to the supervisors of both of such towns,” etc. It nowhere appears in the petition and proof upon which the relators ask for relief that any duplicate petitions were ever made or presented to the supervisors of the respective towns. There is in fact no proof that an original petition was presented to the supervisors of the one town and a copy thereof to the supervisors of the other town. The object of requiring duplicate applications was evidently that each town might have, upon its records, evidence of the authority of its supervisors to act in the premises-. The statute which requires duplicate applications to be made is not complied with by making a single application, and presenting that, first, to one set of supervisors, and then to the other; nor is it complied with by making a copy of the application, and presenting that to one board of supervisors, and the original to the other board. In legal parlance, a “ duplicate application ” is not simply a copy of the application. In the American and English Encyclopedia of Law, “duplicate” is defined as “a document which is the same in all respects as some other instrument, from which it is indistinguishable in its essence and its operation.” Vol. VI, p. 56. In Burrill’s Law Dictionary “duplicate” is defined as “an original instrument repeated.” Tindal, C. J., in Toms v. Cuming, 7 Man. & G. 93, says: “ The meaning of the word ‘ duplicate ’ is that one document resembles the other in all essentials.” Justice Maulé, in the same case, says: “The term ‘duplicate’ means a document which is essentially the same as some other instrument. It is a very different thing from an examined copy.” There is no allegation in the petition of the relators that any duplicate petition was ever made by the petitioners, either in 1884, when the petition was first presented, or at any other time. Eor this reason, also, the writ was properly denied.

By the Court.— The order and judgment of the circuit court are affirmed.