40 Wis. 124 | Wis. | 1876
It is objected that James Wood bad no right to intervene in the proceedings to lay out the highway, for the purpose of having the action of the commissioners reviewed on certiorari. This position is untenable. The proposed highway passed through his land, and it seems too plain for argument that be was not a stranger to the proceedings which so materially affected bis rights and interests. He bad the undoubted right to take steps in bis own name to review the action of the authorities in that behalf. This view leads to the inquiry, whether the proceedings in laying out the highway conformed to the statute. The petition signed by the requisite number of freeholders asked that a highway three rods wide be laid out between the designated points. The supervisors decided, on the hearing, against the application, but
It is objected that Goldstuoker was not a justice of the peace, and had no authority to entertain the appeal, because there was no law which provided for the election of a justice in the city of Eond du Lac, the charter in that regard having been repealed' by sec. 18, ch. 474, P. & L. Laws of 1871. To this objection the counsel for the respondents answers, 1. That the constitution, art YII, sec. 16, gives, the authority to the electors of cities and villages to elect justices of the peace at their charter elections in such manner as -the legislature may direct; and as the legislature had once provided in the charter for the election of justices in the city'of Eond du Lac, the citizens could not afterwards be wholly deprived of that right, made for the benefit of all alike; and, 2. That the return to the writ shows that Goldstuoker was elected and qualified as a justice of the peace, and is acting as such; that therefore he was a justice defacto, if not de fore, and that his acts, so far as third persons are concerned, are binding.
This answer seems to us quite sufficient, and conclusive upon the question. The legislature could not entirely deprive the citizens of the city of Eond du Lac of the right to elect a justice of the peace. It might determine whether one or 'more justices should be elected for the city, but it could not take away the right entirely. The legislature had once acted,, directing the manner of electing justices .of the peace for the city; and having performed its duty in that respect, it could not afterwards totally repeal all provisions for such election. Bull v. Conroe, 13 Wis., 233. It does not appear when Goldstuoker was elected justice of the peace; but upon the facts it is impossible to say he was acting “ without color of
But it is further objected that Goldstucker was not a justice of the town of Fond du Lac, or of any adjoining town, to whom an appeal from the determination of the supervisors might be taken under sec. 91, ch. 19, Tay. Stats. The fourth ward, in which he was chosen, adjoins the town of Fond du Lac; but it is insisted that a justice of the peace of a city ward is not a justice of the peace of an adjoining town, within the meaning of the section just cited. But this view cannot prevail against the clear language of subd. 20, sec. 1, ch. 5, and sec. 162, ch, 19, Tay. Stats. The former section declares that the word “ town ” may be construed to include a city ward or district, unless such construction would be repugnant to the provisions of any act specially relating to the same. That is, “ wherever the word ‘ town is used in any act, it may, if the context requires it, and that is clearly the sense in which the authors of the act intended it should be used, be so construed as to include cities or wards.” Mr. Justice Downer, in State ex rel. Sherman v. The Common Council of Milwaukee, 20 Wis., 87-90. Sec. 162 makes the provisions of ch. 19 relating to highways applicable to cities, unless inconsistent with some special provision relating to such cities. We are unable to say that the legislature intended to exclude a justice of an adjoining ward or city from the language of the appeal section; nor does any cogent reason occur to us for adopting a construction which would exclude the jurisdiction of such justice, if the language were of doubtful import, as it is not. A labored argument is made to show that city commissioners would unnecessarily burden towns with expense when considering the question of laying out a highway in a town adjoining the city; but we fail to perceive the force of the argument. Besides, if any evils
Sec. 94 provides that, on the appeal being made, the justice shall “ annex to the application a warrant,” etc. It appears that the warrant was served upon the commissioners appointed, and, before they proceeded to' act in the matter, the warrant itself and application were handed to them. This we deem a sufficient compliance with the law.
Further it is insisted that no appeal to commissioners lies where the application is for a highway three rods wide, as in the case before us, but that the determination of the sujier-visors is final and conclusive. The statute gives the supervisors “power to lay out public roads of the width of three rods, when in their opinion a road of greater width is not needed.” Sec. 87 (same as sec. 74, ch. 152, Laws of 1869). But see. 77, ch. 152, gives an appeal to any person who shall consider himself aggrieved “ by any determination of the supervisors ” in laying out or refusing to lay out any highway. This provision certainly authorizés an appeal in the case of a .road three rods in width, the same as in other cases.
This disposes of all material questions in the case.
By the Court. — The judgment of the circuit court is affirmed.