136 Wis. 583 | Wis. | 1908
Lead Opinion
At the very threshold of this case the court is confronted with the question whether mandamus is either a possible or a proper remedy conceding that all the facts are as relator claims them. This question is at least akin to jurisdictional, for it must be resolved in the affirmative before the court can properly proceed to consider the controversy between the parties. [Neither was this question considered by the court below apparently, nor is any aid thereon given
The result is that the court should have dismissed the writ and the proceedings without considering and deciding upon the facts in controversy. The present judgment correctly disposes of the action and proceeding and should not be reversed in that respect, but it should not stand as a conclusive adjudication of the facts or other controverted questions which should not have been considered. With that qualification, therefore:
By the Court. — Judgment affirmed.
Concurrence Opinion
(concurring). I concur in the affirmance of the judgment, but I cannot accede to the grounds upon which it is placed. I understand the grounds of decision expressed in the opinion of Mr. Justice Dodge are, in substance, that mandamus will not be granted in this case for the reasons (1) that the duty imposed on the engineer of the city is not a statutory one; and (2) the duty sought to be enforced, though assumed to be an absolute one, is a contractual obligation, and the courts will not exercise their power by the extraordinary writ of mandamus to compel performance of an obligation arising out of contract I am of opinion that this extraordinary power of the court should be exercised to enforce contract obligations wherein this remedy
Concurrence Opinion
(concurring). I assent to the correctness of the conclusion reached by the court, but do not concur in the reasons given for such conclusion. I see no reason why an action at law might not be maintained to recover the amount ■of the partial payment to which plaintiff may be entitled, upon showing an arbitrary refusal on the part of the engineer to make the estimate provided for in the contract. In the event of such refusal I think the facts which the engineer was called upon to determine could be proved by other competent testimony. In no event would mandamus lie unless the right sought to be enforced was clear, and, if it was clear, the action of the engineer was necessarily arbitrary. Hence the plaintiff had an adequate remedy by action at law, and mandamus would not lie. I base my concurrence solely on the ground above stated.