67 Wis. 86 | Wis. | 1886
Six or more freeholders of the town, of whom the relator was one, applied to the supervisors, under ch. 54, E. S., relating to drains, to lay out and establish a ditch or drain, a part of which was on the land of the relator, and a part on the land of the appellant. The supervisors laid out and established the same according to said application. John Findley, the appellant, feeling himself aggrieved by the decision, filed in the office of the town clerk a notice of appeal therefrom, and also a notice that he would apply to a justice of the peace of the county for the appointment of commissioners to hear and determine said appeal, and the justice thereupon made out a list of fifteen freeholders, and from such list ten persons were stricken off according to sec. 1362, E. S., and the five not stricken off were summoned to serve as commissioners to determine said appeal, but only four of them appeared or took the necessary oath, or proceeded to examine the lands, or participated in the decision and judgment on said appeal. The decision of four of said commissioners was reduced to writing, and signed only by them, and returned to the justice, and by such decision the decision and judgment of the supervisors laying out and establishing said ditch or drain were in all things reversed. This writ of certiorari was directed to the town clerk to produce these records. On the hearing in the circuit court the decision of the four commissioners was reversed.
We need notice only one reason urged by the learned counsel of the respondent in support of the judgment of the circuit court, as that reason appears to be fatal to the decision of the commissioners. The statute (sec. 1362, E. S.) requires the selection and qualification of five commissioners, no more and no less. They are all to meet at the time and place mentioned in the summons, “ to serve as commissioners, to hear and determine the matter embraced in such appeal,” and the justice then and there delivers to them the certified copy of the notice of appeal, and then “ the com
1. The five commissioners, when fully qualified to act by taking the oath, constitute a quasi judicial tribunal or court of appeal, authorized to affirm or reverse the “ determination or judgment ” of the supervisors laying out and establishing the ditch or drain. They must examine the lands, and “ may administer oaths and examine witnesses,” and “shall hear any reasons which may be offered for and against the determination or judgment of the supervisors,” and reduce their decision to writing. They are summoned and returned like a jury on venire from a justice of the peace. Their decision on the merits of the subject matter of the appeal is final, and cannot be reviewed. Precisely fifteen freeholders are first selected by the justice, and then from such list five are struck off by each party, leaving exactly five to constitute this tribunal whose duties are thus prescribed, and while they are hearing the case “ they may continue the hearing of the cause from day to day.” It is clear enough that to constitute this tribunal the whole number so selected must qualify by taking the required oath, so that the body may act according to the direction of the statute. Four such persons cannot form this tribunal, and until it is formed and constituted according to law it has no jurisdiction over the matters of the appeal.
2. The statute would seem to require also the joint action of the whole number so far as the hearing and decision are concerned. It provides, ex industria., that “ the decision of said commissioners shall be reduced to writing, and signed ly them,, or a majority of them” Why provide that a
It follows that the decision of the commissioners reversing that of the supervisors is void,.and should itself be reversed, and that the judgment of the circuit court reversing the same should be affirmed.
By the Court. — The judgment of the circuit court is affirmed.