State ex rel. McCune v. Goodwin

Cole, J. The writ of certiorari properly brings up the proceedings taken under the statute for vacating the highway; and we suppose these entire proceedings constitute the record. The question is, Were these proceedings regular, and in conformity to the statute % How can that question be determined, unless we look into the proceedings taken? It is claimed that the return made by the supervisors should only embrace the order of the commissioners, and the order of the supervisors made upon the decision of the commissioners, with the certificate as to the time the last order was filed in the town' clerk’s office; and that all the other matters included in 290 the- return should not be considered. The writ commanded the supervisors not only to certify and return their order made upon the decision of the commissioners, but '■'•all 'proceedings v/pon which said order and determination was founded.” This the supervisors have done; and we must look into the entire proceedings to see if they are in conformity to the statute, and show jurisdiction to discontinue the highway in question. And, upon examining the return, we think that it shows that the proper legal steps were taken to discontinue the highway. The supervisors first decided against the application to discontinue. A person aggrieved by their determination took an appeal, as provided in sections 77 and 78, chap. 19, R. S., and had commissioners appointed. These commissioners were appointed; the return .shows that they were sworn. It is said the return does not furnish any evidence that the commissioners acted under a sufficient warrant. This objection is not supported by the record. True, the order of the commissioners does not set forth at length the warrant of the justice, but certainly refers to it, and shows that they acted under it. It is also said, that the order of the commissioners should set forth all the necessary jurisdictional facts. The statute provides that the justice shall annex to the application for appeal a warrant, appointing a time and place for the meeting of such commissioners, and issue the same to the persons appointed, directing them to view and examine the highway described in the application, and the determination of the supervisors in refusing to discontinue the same, and “ and to onahe return of their decision thereon.” Sec. 80. And the next section says: “ The decision of such commissioners shall be reduced to writing and signed by them, and filed with the town clerk.” The statute does not require that the order or decision of the commissioners shall set forth all the antecedent proceedings which led 291 to their appointment, or recite the warrant at length, and that all the requirements of the statute were complied with. But they were simply to view and examine the designated highway and the determination of the supervisors, and make their written decision upon that matter. This was done in this case, and the supervisors proceeded to discontinue the highway, in accordance with the decision of the commissioners. A further objection is taken, that the return does not show that three commissioners were appointed. This is not so. The return does show that three were appointed. It is true, the decision is signed by only two commissioners; but this is sufficient under our statute. Subd. 3, § 1, ch. 5, E. S.; 17 Wis. 398. The cases of The People v. Hynds (30 N. Y. 470), and The People v. Williams (36 id. 441), have no application, for the reason that the statute of New York provides that orders made by two commissioners shall be void, unless it appears upon the face of the order that all the commissioners met and deliberated on the subject embraced in the order, or were notified to attend a meeting of the commissioners for the purpose of deliberating thereon. We have no such provision in our statute. We think the order of the supervisors, discontinuing the highway, was correct. The judgment of the circuit court, reversing that order, must therefore be reversed, and the order of the supervisors affirmed. By the Qourt. — Ordered accordingly.