17 Wis. 687 | Wis. | 1864
By the Court,
(The first objection taken, that the relator does not in his relation state with sufficient distinctness and precision the facts establishing his right to a peremptory writ, we deem untenable. The relation is lengthy, and we shall not attempt to give a summary of its various allegations. It is sufficient to say that we consider them sufficient in form and substance.
Another ground relied on by the respondents to show that a peremptory writ should not be accorded to compel them to proceed and audit the amount of damages allowed the relator in consequence of laying out the highway over his land is, that it appears that the commissioner who assessed those damages were not all freeholders of the town, of Aztalan, and therefore that their award was null and void. The statute provides that if any owner of lands through which a highway shall be kid out by the supervisors, is not satisfied with the sum awarded for damages by such supervisors, he may, within thirty days after the filing of the award, apply to a justice of the peace of an adjoining town for a jury to assess and ap
In this case there is considerable conflict of testimony as to when the objection was first taken, that certain persons on the jury were not freeholders and were therefore disqualified to act. Some of the witnesses have stated, in their affidavits, that it was after the jury was summoned but before they were sworn. while an equal number as positively swear that no objection was made until the jury had been sworn and proceeded to view the premises. It is not necessary for us to weigh these conflicting statements, and indicate which, on the whole, we regard as the more probable and correct, since they all agree that no objection was taken to the persons on the jury when it was struck, which was the time when it should have been made. The counsel for the respondents contended that the question here involved is analogous in principle to the case where a petition is presented to the supervisors for laying out a highway. In such a case this court has decided that the petition must be signed by the requisite number of freeholders, to give the supervisors jurisdiction. But we think a distinction exists between this case, where the jury are selected merely to appraise damages which result from the laying out of a highway, and one where a petition is presented which constitutes the founda
A still further objection to granting the peremptory writ is, that the relator has a perfect right of action against the town of Farmington on the award, especially since the passage of chapter 286, Laws of 1861. This statute gives a party the right to bring his action against a town for the amount of damages awarded him upon laying out a highway, when the town board neglects or refuses to audit the claim. But notwithstanding this law, we think a peremptory writ should be awarded, to compel the town board to proceed and audit the amount allowed the relator by the jury or commissioners, and to take the proper steps to have the same collected. This is a clear legal duty, which the statute imposes upon them, and they offer no good reason why they should not perform it. In McCullough vs. The Mayor of Brooklyn, 23 Wend., 458, it was said by Judge BroNSON that “ although, as a general rule, a mandamus will not lie when the party has another remedy, it is not universally true in relation to corporations and ministerial officers. Notwithstanding they may be liable to an action on the case for a neglect of duty, they may be compelled by mandamus to exercise their functions according to law.” See The People vs. Mead, 24 N. Y., 114; Regina vs. Southampton, 101 E. C. L., 4, and authorities there cited. Besides, if the relator should bring his action against the town and recover judgment,
For these reasons we think the peremptory writ should be awarded.