22 N.W.2d 160 | Wis. | 1946
Application by the state of Wisconsin on the relation of Wisconsin Department of Agriculture for leave to commence an original action in this court for the purpose of obtaining an alternative writ of mandamus to compel the Hon. CHARLES L. AARONS, circuit judge, to appoint appraisers to award damages for property sought to be taken by the Wisconsin Department of Agriculture from the Chicago, Milwaukee, St. Paul Pacific Railroad Company for state park purposes in condemnation proceedings. Petition for the appointment of commissioners under ch. 32, Stats., was filed with the Hon. CHARLES L. AARONS, circuit judge, on July 10, 1945. After hearing thereon the petition was dismissed.
The state of Wisconsin owns a parcel of land of approximately one hundred thirty-five acres immediately south of lands owned by the Chicago, Milwaukee, St. Paul Pacific Railroad Company, hereinafter referred to as "railroad company," which has been used for many years as the site of the annual Wisconsin State Fair, and in May, 1945, it acquired a tract of land consisting of about sixty-three acres immediately to the north of land owned by the said railroad company. All of the above land now owned by the state is under the control of the State Department of Agriculture, which now seeks to acquire, by condemnation, lands owned by the railroad company, *421
comprising approximately eighteen and one-half acres lying between the two parcels now owned by the state, conditioned that the railroad company have an easement for its main track right of way across the north one hundred feet thereof. The tract sought to be acquired is two thousand six hundred forty-five feet from east to west, four hundred eleven feet wide at the westerly end, and two hundred thirty-two feet at the easterly end. Henry A. Scandrett, Walter J. Cummings, and George I. Haight, trustees of the property of the railroad company, filed an answer in its behalf. After a hearing pursuant to sec.
"32.04 Petition. Any person desiring to acquire any property by condemnation shall present a verified petition therefor to the county or circuit judge of the county where such property is situated. . . .
"32.08 Commissioners. If the petitioner be entitled to condemn the property or any portion thereof the judge shall appoint three freeholders . . . commissioners. . . ." *422
"32.11 Appeal. Any party to a condemnation proceeding . . . may appeal from the award of the commissioners to the circuit court of the county by filing a notice of appeal in the office of the clerk of such court. . . . It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein. . . ."
In Tobin v. Willow River Power Co. (1932)
"While the proceeding under ch. 32, Stats., is before the judge, it is not a proceeding in court. The taking of private property for public purpose is a matter that rests within the power and discretion of the legislature and it may be taken upon such terms as the legislature prescribes, subject to the right of trial by jury on the question of necessity where property is taken by a municipal corporation."
The only appeal is to the circuit court from the award of commissioners, as provided in sec.
From the foregoing it is evident that no appeal lies from the order dismissing the petition. Petitioner contends that under its superintending power this court should grant the writ requested. The superintending power of this court is found in sec. 3, art. VII, of the constitution, in the following language:
". . . The supreme court shall have a general superintending control over all inferior courts; it shall have power to *423 issue writs of habeas corpus, mandamus, injunction, quo warranto,certiorari, and, other original and remedial writs, and to hear and determine the same."
The constitution grants this jurisdiction to the court to protect the legal rights of litigants when the ordinary processes of action, appeal, and review are inadequate to meet the situation, and where there is need for such intervention to avoid grave hardship or complete denial of these rights. Wisconsin Law Review, vol. 1941, p. 161. There must be a plain duty on the part of the inferior court. State ex rel. Oshkosh, Algoma Black Wolf R. Co. v. Burnell (1899),
To warrant the exercise of superintending power there must be a clear legal right on the part of the applicant, a plain duty on the part of the inferior court, the remedy by appeal or writ of error must be inadequate, there must be an exigency calling for prompt action, the power is not to be used to perform the office of appeal or writ of error, and refusal to act and to exercise superintending control must result in grave hardship to the litigant. Many of these requirements are lacking. No inferior court has acted or had an opportunity to act, and when an opportunity to act is given to it, there is a remedy by appeal.
The ultimate determination of the question involved is not of such importance to the state of Wisconsin or to the valid and orderly function of state government as to present a questionpublici juris and warrant this court in taking original jurisdiction, as was held in Petition of Breidenbach (1934),
We are aware of the duty of courts to aid in bringing about the speedy determination of matters in difference between parties to an action, but this must be done in an orderly and lawful manner. While the law provides for the submission of an *425 agreed case to the court which would have full jurisdiction if an action was brought (sec. 269.01, Stats.) and jurisdiction was assumed by this court in the case of Olen v. WaupacaCounty, supra, on the ground that judgment was entered in the circuit court on facts which the parties submitted to the court, which on appeal was treated by this court as a judgment on a stated case, that is different from the matter before us. To grant the petition would be equivalent to permitting the parties to agree on a statement of facts and then submit it to this court and thus receive a final decision. It is considered that there is no authority in law for this court to grant the writ requested.
By the Court. — Petition denied.