97 Wis. 96 | Wis. | 1897
Three questions are presented on this appeal: Eirst, had the county judge jurisdiction to consider and decide upon the right of the relators to appeal from the determination of the supervisors altering.the highway? Second, if such jurisdiction did not exist and the relators had no right to appeal under the statute, could the county judge be compelled by mandamus to appoint commissioners on Such' appeal? Third, were the relators entitled to appeal-under the statute? If the relators had such right of appeal, upon the refusal of the county judge to appoint the- com
The initial question above referred to turns on the proper construction of the language of sec. 1276, E. S., which is as follows: “ Any person who shall consider himself aggrieved by any order laying out, altering, widening or discontinuing any highway, or by any refusal so to do under the preceding provisions, may, within thirty days after such determination, appeal therefrom and apply to a justice of the peace of the same or an adjoining town in the county, or to the county, judge, for the appointment of commissioners to review such order or determination. Such application shall be in writing and shall briefly state the grounds upon which it is made, and whether it be made to reverse entirely such order or determination, or only a part; and in the latter case it shall state what part.” It was contended before the county judge that, inasmuch as the grounds for the appeal stated by the relators in their notice of appeal failed to show that they were injuriously affected by the alteration of the highway in any other way than the public generally, they did not bring themselves within the statute; that it is essential to the right of appeal that the person asserting it show by the notice of appeal some special injury — some injury peculiar to himself and not common to the public. The county judge sustained such contention, and in the proceedings by mandamus to compel him to appoint the commissioners the same question was presented with a like result.
Our statute, without material change so far as relates to the question here presented, was adopted from the state of.
In People ex rel. Shaut v. Champion, 16 Johns. 61, decided in 1819, cited by appellants, the precise question here presented was first raised, with the result that it was held that' the words “conceives himself aggrieved” should be given-their plain and natural signification; that it satisfies the statute if the person seeking to appeal “conceives himself aggrieved,” whether he be in fact aggrieved or not.. SpenceR, J., who delivered the opinion of the court, said: “The statute gives the right of appeal to any person who ‘conceives himself aggrieved’ by the determination of the supervisors. . . It cannot admit of a doubt that any person.may appeal whether he be aggrieved or not;- it satisfies the statute if he £ conceives himself to be aggrieved.’ ” In People ex rel. Ridgeway v. Cortelyou, 36 Barb. 164, decided in 1862, the early case was followed. The -commissioners of highways laid out a highway. A resident and taxpayer of the town duly appealed to the county judge from the decision of such commissioners, stating in his notice of appeal the grounds thereof, and that he conceived himself aggrieved. The county judge appointed referees to hear the appeal, and, upon its- appearing to them that the appellant was not the owner of land affected by the highway, dismissed the appeal. The proceedings were, by writ of cer-tiorari, removed to the supreme court for review, and it was there held, after a full discussion of the subject, that it is not essential to the right of appeal that the person appealing
It will serve no useful purpose to review the numerous ■decisions of other states,- some of which undoubtedly conflict with the views above expressed. Whether, in view of such •decisions, we would have reached a different conclusion fhan the one here announced if we were free to consider the ■subject as an original question in this court, unfettered by -the foreign construction to which we have referred, need not be discussed. The statute having come to us with such foreign construction, such construction was effectually writ-fen into it and became the law of this state by adoption as much as the statute itself.
We have not overlooked People ex rel. Lawrence v. Schell, 5 Lans. 352, cited in People ex rel. Scrafford v. Stedman, 57 Hun, 284. That case has no bearing on this, first, because •it is the decision of an inferior court and would not change the rule as laid down in the early case; second, the decision was rendered after the construction of the statute given in People ex rel. Shaut v. Champion, 16 Johns. 61, became, by -adoption, a part of the law of this state; third, because the ■decision did not turn on the construction of the statute, giving the right of appeal to the county judge to have the decision of the commissioners of highways reviewed by other, .persons appointed by such judge, in the manner provided by
It is considered that the relators brojught themselves-within the statute by the notice of appeal, stating that they considered themselves aggrieved, and stating the grounds of the appeal. The county judge should have appointed commissioners to review the action of the board of supervisors: of the town. The circuit court'should have granted a peremptory writ of mandamus requiring the county judge to-perform his duty in regard to the appeal; hence the judgment appealed from must be reversed, and the cause remanded with direction to issue such writ, and for further-proceedings according to law.
By the Court.— So ordered.