State ex rel. Kulike v. Town Clerk of the Lebanon
111 N.W. 1129
Wis.
1907
Check Treatment
KerwiN, J.

The first question presented, and the one which is decisive of this appeal, is whether the writ was properly directed. Respondent insists that it should run to the town clerk and not to the supervisors, and bases his contention mainly upon Milwaukee I. Co. v. Schubel, 29 Wis. 444; Williams v. Yorkville, 59 Wis. 119, 17 N. W. 546; State ex rel. Gordon v. McNay, 90 Wis. 104, 106, 62 N. W. 917; State ex rel. Hewitt v. Graves, 120 Wis. 607, 98 N. W. 516; and Rude v. St. Marie, 121 Wis. 634, 99 N. W. 460. In Milwaukee I. Co. v. Schubel the writ of certiorari was issued to bring up the proceedings of the town board of review, and it was held that the writ was properly directed to the town clerk, because he had the legal control and possession of the proceedings and had at the time the writ was issued the legal custody and possession of the record. The board of review, being a temporary and not continuing body, passes out of existence as soon as it performs its functions, and the record of its proceedings remains with the clerk. Therefore he is the proper party to whom the writ should be directed. In Williams v. Yorkville and State ex rel. Gordon v. McNay the question of the action of the supervisors under the drainage law was involved, and this court held that the town supérvisors in the exercise of their duties prescribed by such law were not acting for and on behalf of the town, but rather as public or governmental officers, or agents, in the exercise of police power conferred upon them by statute, in the exercise of which the town had no concern. True, in State ex rel. Hewitt v. Graves the proceeding was by certiorari to review the action of the town supervisors in laying out a highway and the writ was directed to the town clerk, but it appears in this case that the question of whether the writ was properly directed or not was neither raised nor considered, therefore the case cannot be regarded as authority upon the question. In State ex rel. Gordon v. McNay the proceeding was under sec. 1365, R. S. 1878, and therefore it was held that the supervisors were act*105ing as governmental officers, charged with the execution of police powers, and not acting on behalf of the town. Rude v. St. Marie was also an action which involved the construction of ch. 54, Stats. (1898), involving the drainage laws.

There can be no doubt that the town supervisors, under ch. 52, Stats. (1898), in laying out a highway act on behalf of the town, and proceedings referred to in the petition and writ which are claimed by respondent to be void were taken and performed by the supervisors of the town acting as such. Ch. 53, Stats. (1898); State ex rel. Flint v. Fond du Lac, 42 Wis. 287; Durkee v. Kenosha, 59 Wis. 123, 17 N. W. 677. The supervisors of the town, being a permanent and continuing body and acting on the part of the town in laying out the highway, were the proper parties to whom the writ should run. State ex rel. Graff v. Everett, 103 Wis. 269, 79 N. W. 421; State ex rel. Flint v. Fond du Lac, supra; State ex rel. Ollinger v. Manitowoc, 92 Wis. 546, 66 N. W. 702; State ex rel. Clancy v. McGovern, 100 Wis. 666, 76 N. W. 593; State ex rel. Tibbits v. Milwaukee, 86 Wis. 376, 57 N. W. 45. Except where specially provided by statute or in particular cases of necessity, as where the board or body whose acts are sought to be reviewed is not continuing or has ceased to exist, the writ of certiorari cannot properly run to a mere ministerial officer simply because he is the custodian of the records, but must go to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either. of the subject matter or of the persons composing such board or body. In Davis v. Harrison, 46 N. J. Law, 79, 86, the court in speaking of the party to whom the writ should run said:

“The rule is that the writ should be directed to the person who, in legal contemplation, has the custody of the record to be certified. Morris C. & B. Co. ads. State, 14 N. J. Law, 411; Kirkpatrick v. Comm'rs, 42 N. J. Law, 510. But this has never been construed as requiring the writ to be directed to a mere subordinate officer of a court or a municipal corporation, though he may be in actual possession of the record. His *106custody is that of the court or corporation whose officer he is. The practice, therefore, is to direct the writ to the principal and not to the mere agent. In this case the record was, in legal contemplation, in the custody- of the town when in the possession of its clerk.”

It follows that the writ in the case before us should have been directed to the town supervisors, and therefore the circuit court obtained no jurisdiction of the subject matter or of the supervisors, hence the writ should have been quashed.

By the Court'. — The order of the court below is reversed, and the action remanded with instructions to quash the writ of certiorari.

Note by KeewiN, J. Ch. 146, Laws of 1901 (providing that “all writs of certiorari issued to review any action taken by any . . . town board, ... or any record lawfully in tbe custody of any . . . town clerk, . . . may be addressed to and served upon the proper . . . town clerk, who shall make return thereto”), was not referred to by counsel in their briefs or on the oral argument in this case and was overlooked by the court.