State ex rel. Winslow v. Supervisors of Mount Pleasant

16 Wis. 613 | Wis. | 1863

By the Court,

Dixon, C. J.

There appear two insuperable obstacles in the way of this proceeding. If, as alleged in the return, it will cost not less than five hundred dollars to rebuild, or suitably repair the bridge, and if the legal voters at the annual meeting held in April, 1862, duly considered whether it was necessary or expedient to do so, and resolved that it was not, and that no money should be raised and appropriated for that purpose, it is very obvious that the supervisors cannot be compelled to proceed with the work by mandamus. It is no part of the their official duty to build or repair bridges at their own expensej or under circumstances where they cannot directly charge the town with the cost.

If, on the other hand, the sum required should not exceed three hundred dollars, the writ will not lie because the power to decide upon the necessity of repairs in such cases, is vested by law in the supervisors, and their judgment cannot be controlled by mandamus. The statute declares (sec. 113, chap. 19, R. S.) that whenever the supervisors shall deem it necessary to rebuild, repair or maintain any bridge, they shall have power to levy and collect a tax not exceeding three hundred dollars, &c.

It may be that the inhabitants, or 'the supervisors of the town, are liable to indictment for not repairing, (see Wharton’s Am. Crim. Law, § 2409; State vs. King, 5 Iredell, 411, and Wharton’s Prec. of Indictments, 458 to 456, and notes), but it seems clear upon the facts disclosed by the record, that they cannot be compelled to do so by this proceeding.

Order reversed, and cause remanded for further proceedings according to law.