140 Wis. 265 | Wis. | 1909
Appellant’s counsel present this appeal as if, since appellant has a clear legal right to have the drainage ditch repaired, the alternative writ, by which it was sought to enforce such right, should not have been quashed. It does not necessarily follow, because a person has a clear legal right which can only be effective by the act of another, that it is the clear duty of the latter to perform such act at the particular time and in the particular manner such person may demand it. It is fundamental that both conditions must exist; the right and the duty to act, before the extraordinary remedy can be successfully invoked. State ex rel. Pfister v. Manitowoc, 52 Wis. 423, 9 N. W. 607; State ex rel. Board of Ed. v. Hunter, 111 Wis. 582, 87 N. W. 485; State ex rel. Wis. Met. Tel. Co. v. Milwaukee, 132 Wis. 615, 113 N. W. 40; State ex rel. Rowe v. Krumenauer, 135 Wis. 185, 115 N. W. 798; State ex rel. Fire & Rust Proof C. Co. v. Icke, 136 Wis. 583, 118 N. W. 196.
When the duty sought to be enforced is of a private nature a demand must be made for substantially that particular thing, of the particular person upon whom the duty of performance rests; and his refusal thereof must precede application for a writ to coerce such person to act; and the facts in that regard must be made to appear in the petition for the
The quoted authorities are particularly applicable to this •case, in that they are to the effect that where the doing of the official act in question requires the expenditure of money, performance cannot be coerced by mandamus in absence of .a showing that money is presently available, applicable to do the particular matter.
Now in this case there is no showing in the petition that respondents had money which could properly be applied to repair of the ditch. If they had no such money under their control, it was plainly shown by the relator, as the fact is, that it was only obtainable by their filing a report, as the •drainage law (ch. 419, Laws of 1905) provides, specifying, among other things, in detail, the labor necessary to the preservation and protection of the improvement, the places needing repairs, and securing, on due notice and hearing, judicial .approval of the proposed wort and expenditure, and determination of the amount of the assessment upon each particular parcel of land benefited, and collection of such assessments in due course, — and it was further alleged that no such report had been made though the law requires one to be. made in the circumstances of respondents, annually, to the court having jurisdiction of the matter. Thus by the statute it is left to the judgment of the commissioners, preliminarily,
The most the petition shows as to default on the part of the commissioners, is failure to make the required report. 3STo action in that respect was demanded before commencement of these proceedings, nor do such proceedings contemplate coercion of respondents in such respect. So far as is; disclosed, it is proposed to cause respondents to repair the-ditch regardless of whether there is money applicable therefor, or whether the conditions precedent to the making of repairs have been complied with, merely because there is need' for the repairs and respondents have failed to present the-matter to the court for consideration and direction and indue course to accumulate the necessary money to meet the-expense. In other words, it is proposed to compel respondents to make the repairs at their own expense, as a sort of penalty Tor the default aforesaid, and take their chances of' later recouping the same by collection of approved assessments upon the property benefited. Sufficient has been said to show, clearly, that the facts stated in the petition for the-writ of mandamus do not constitute any basis for the relief' sought and, therefore, that the writ was properly quashed..
By the Court. — Order affirmed.