172 Wis. 181 | Wis. | 1920
The following opinion was filed May 4, 1920:
This action was here on a former appeal (168 Wis. 497, 170 N. W. 725) where a more detailed statement of fa-cts will be found, The. issues were there presented upon a demurrer to the return to the alternative writ, and it was held that the failure of the town board to act upon the petition within sixty days from the date of its filing with the town clerk constituted a refusal to lay out the highway pursuant to the provisions of sec-. 1276 of the Statutes. Upon .the remission of the case to the circuit court the relators filed an answer to the return of the town board in which it was alleged that the town board had taken action upon the petition within sixty days after the filing thereof, which action consistent of (a) the making out and signing of the notice for the meeting of December 18th on the 5th day. of September, and (b) action of the town board as evidenced by the following minutes taken from the official records of the proceedings of the town board kept by the town clerk:
“Town board of the town of Norway composed of Albert Hanson, chairman, B. J. Bendickson, and /. W. Goetz, and J. A. Jacobson, clerlq met at Matt Scharel’s in section 16, town of Norway, on October 26, 1916, for the purpose of examining the section line between sections 16 and 17, the petition for a highway on said section line having been filed with the town clerk. Matt S char el agreéd to make the road passable from the road running east and west along the south shore of Wind Lake and, south- to the quarter section*183 line. They examined the section line and agreed to act upon the petition.”
The trial court found upon sufficient evidence that the notice for the meeting of December 18th was made out December 5th, and not on September 5th, so that the only question here is, Did the action of the town boárd, as indicated by the minutes of the meeting above quoted, constitute action upon the application' within the meaning of sec. 1276, Stats., so that there was not a refusal to lay out the highway under the provisions of that section? We do not think it constituted action upon the petition. When an application for the laying out of a highway is filed with the town clerk the statute prescribes the duties of the town board with reference thereto. An action on their part, within the meaning of sec. 1276, must be the performance of some of those legal duties resulting from the filing of the petition. The minutes quoted do not evidence that kind of action, and our conclusion is that‘the allegations" of the answer made to the return of thé town board do not disclose action on the petition within sixty days from the date of its filing.
The decision of the trial court was based on the assumption that the action contemplated by sec. 1267, Stats., meant final action upon the application, and that even though preliminary action had been taken by the town board, yet, if final fiction had not been taken within sixty days, the application was to be deemed to have been refused under the provisions of sec. 1267. We are satisfied that this is not a correct construction of the statute. A consideration of the statutory procedure for laying out a highway persuades us that the legislature did not intend to require final action within sixty days from the date of .the filing of the application. The notice of the time and' place at which they will meet and decide upon such application must be posted up at least ten days before the time of such meeting. Sec.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, without costs, on July 3, 1920.