State ex rel. Town of Spring Lake v. Board of Supervisors

71 Wis. 321 | Wis. | 1888

Lyon, J.

1. It was stated in the argument, and not controverted, that the ground upon which the Board of Supervisors of Pierce Gount/ij refused to make the appropriation demanded was that the board were of the opinion the act of 1885 is unconstitutional and void. But for this opinion we suppose this appeal would not have been taken, although many other objections to the validity of the judgment were made and argued by counsel. Since this appeal was taken this court has decided that the statute in question is a valid law. State ex rel. Baraboo v. Sauk Co. 70 Wis. 485; State ex rel. Woodland v. Sauk Co. 70 Wis. 491; State ex rel. Rochester v. Racine Co. 70 Wis. 543. These decisions put at rest the question of the validity of this law.

2. The relation or petition for a mandamus states sufficient facts to entitle the town to the relief demanded, with perhaps two exceptions. One of these is, it is not alleged therein that the officer applying for the writ was directed by the electors of the town to make such application. In the two cases against Sauk county, above cited, this was held a fatal defect unless supplied by amendment. The other exception is, the petition states that one of the bridges which the town proposed to build was across a ravine, without stating that it also crossed a stream of water. The act of 1885 does not limit the bridges which the county may be required to assist in building, to such as cross streams of water. A bridge may be as necessary across a dry ravine as it would be did a river flow through the ravine, and no good reason is perceived why any distinction should be made in the two cases.

Both of these alleged defects in the petition are cured by the subsequent proceedings in the case. The town proved on the trial (of course without objection, for the county was not present to object) that the electors of the town, at a town meeting therein, gave direction to its supervisor’s to institute this proceeding; and also proved that a stream of water flowed through the l’avine in question most of the time. The rule in this state is that in such a case the defective pleading may be amended at any time to correspond with the proofs, or the variance or omission may be disregarded without actual amendment. This is so well settled that it would be an affectation to cite authorities to support the rule. Hence we must regard the petition as containing all the necessary allegations (if the same are true) to entitle the town to the relief demanded.

3. A very ingenious argument was submitted by counsel for the county board to show that in case the recitals of fact in the writ are defective, no resort can be had to the relation to supply such defects. Under several cases in this court this is probably an untenable proposition. The question is of no importance in this case, however, for the reason that the material allegations in the relation are sufficiently recited in the alternative writ.

4. Bo answer to the return was interposed. Because of this it is contended, on behalf of the county board, that there was no issue to be tried. The contention is that in the absence of such answer denying the allegations of the return such allegations must be taken as admitted.

It is probably the correct practice, where independent averments of fact are stated in the return, for the relator to answer and deny them if he wishes to make an issue thereon. But where, as in this case, the return consists of denials of material allegations in the relation, no such practice is required. In such a case an answer would be nothing more than a reiteration of the averments in the relation, which, of course, is unnecessary and absurd. So we conclude that the return raises issues upon all propositions of fact affirmed in the relation and denied in the return. This disposes of one of the objections made to the trial of the cause in St. Croix county.

5. Were the issues properly tried in the circuit court of St. Croix county ? We think the question must be answered in the affirmative. It was tried at a general term of the circuit court of that county, and such term is a special term for the circuit court of Pierce county, both counties being in the Eighth judicial circuit. Laws of 1881, ch. 292. It is provided by statute (B. S. sec. 3452) that when a writ of mandamus shall be issued by any circuit court, any issue of fact therein may be tried at a special or general term thereof, and the court may summon a jury for the trial thereof. This cause, as we have seen, was tried at a special term of the circuit court of Pierce county, that being the county in which it was commenced. Oh. 292, Laws of 1881, is to the same effect. When read in connection with sec. 3452, the reasonable construction of it is that issues of fact arising in actions of quo warranto and mandamus may be tried at special terms.

6. It is objected that the judgment is not in proper form in that it requires the board of supervisors of Pierce county to meet, and also to levy the required tax upon the taxable property of the county, without appointing any time for such meetingj and without excepting from liability to such taxation the two cities of Prescott and River Falls within that county, which, it is alleged, are not liable to such tax under the law of 1885. Under a fair construction of this judgment the mandate of the writ awarded by it will be satisfied if such board of supervisors perform the duty required of them by the peremptory writ, at their first meeting after the same shall be served upon them, and if they levy the necessary tax upon the taxable property of their . county, subject thereto. Probably the court has no power to order a special meeting of the board, and has not done so in this judgment.

7. Several other alleged errors were argued by counsel. Some of these have been overruled by former decisions of this court; others are predicated upon erroneous propositions of fact, and still others are purely technical and quite immaterial in the consideration of the case upon the merits. It is unnecessary to discuss or even to state the errors thus alleged.

Upon the whole case, we are satisfied that no material errors prejudicial to the county have been committed in the progress of the cause.

By the Court. — Judgment affirmed.