83 Wis. 340 | Wis. | 1892
It is objected by respondent that this court cannot consider the correctness of the rulings of the circuit court upon the demurrer, because no appeal was taken directly from the order thereon, and that the time for an appeal therefrom has expired. The objection is not tenable, because upon appeal from final judgment the question as to the correctness of the order upon the demurrer may be reviewed. R. S. 1878, sec. 3070; Moritz v. Splitt, 55 Wis. 441.
The questions presented relate to the proper construction of ch. 187, Laws of 1885, which appears as sec. 1319, S. & B. Ann. Stats. That section, so far as material to the questions raised, is as follows: “ Whenever the town board of supervisors of any town shall file its petition with, the county board of supervisors of the county in which such town is situated, setting forth the fact that said town has voted to construct or repair any bridge or bridges, wholly or partly within such town, designating, as near as may be, the location of such bridge or bridges, and further stating that such town has provided for the payment of one half of the cost of such construction or repairs, and that the cost of said bridge or bridges or repairs exceeds one fourth of one per centum of all the taxable property in said town, according to the last equalized valuation, the said county board shall appropriate the other half of such cost, and cause such sum to be levied upon the taxable property of the county as will, with the amount provided by said town, be sufficient to defray the expense of erecting or repairing such bridge or bridges so petitioned for, and such money,, when collected, shall be paid out on the order of the chairman of the county board and county clerk.”
The important question raised by the appeal is as to how far the allegations of the petition are conclusive upon the county board; in other words, what facts may the county board take issue upon and litigate upon mandamus brought to compel their action upon a proper petition. This question is now for the first time fairly presented to this court. It was suggested, but not decided, in State ex rel. Rochester v. Racine Co. 70 Wis. 543.
The broad ground is taken by the respondent that when the proper petition is presented to the county board it becomes their duty to at once appropriate the sum called for, and that they can raise no issue of fact, i. e., that the petition is conclusive. On the other hand, the appellant claims that any and all the facts stated in the petition may be controverted and litigated, and it has endeavored to raise a number of questions of fact, the following being the questions which it relies on: (1) That the town never made any estimate of cost or plans for the work; (2) that the bridges did not in fact need any repairs; (3) that the equalized valuation of the relator was falsely and fraudulently made at forty per cent, of the true valuation; (4) that Apple river is a navigable stream, and consequently the town cannot proceed to rebuild bridges across it under sec. 1319, E. S.
In discussing this subject in State ex rel. Rochester v. Racine Co. 10 Wis. 543, it was said by the court: “ The changes made in the law since 1871 seem to furnish some ground for
With these general principles in mind, it is apparent that the circuit court was right in its ruling upon the demurrer to the return, except in one particular. The return alleged substantially that the town never made any estimate or-determination of the cost of the repairs. This we regard as an essential. It is manifest that the cost must be determined by some authority before the petition is presented to the county board, as it must be a known sum in order that it may be possible to determine how much one half of the cost is, and whether the town has raised its half.Though the statute does not provide in express terms that the town is to determine the cost, we think that is the unmistakable meaning of the section. Here it appears by-the return that the town did nothing save to vote to raise $400 to repair certain bridges on Apple river. They did not determine the extent of the repairs nor make any estimate or determination as to the cost thereof. So far as this alleged action goes, the town may never have intended to spend more than $400, and the application to the county board may have been simply an afterthought on the part
By the Court.— Judgment reversed, and action remanded for further proceedings in accordance with law.