State ex rel. Gordon v. McNay

WiNslow, J. The circuit judge states in his opinion that the modification of the judgment was made “so as to make it clear that the judgment is against them [the supervisors] in their official capacity only; thus making the town liable, and not the defendants personally.” It is plain that if the supervisors in acting upon a petition for laying out a ditch under sec. 1365, S. & B. Ann. Stats., act for and on behalf •of the town, then the town is liable for their acts done in good faith. If, on the other hand, the supervisors act simply as governmental officers charged with the execution of a police power, then the town cannot be held liable for their acts. That the laying out of ditches under ch. 54, R. S., is the exercise of a police power, is settled in this state. Donnelly v. Decker, 58 Wis. 461. That a municipality is not responsible for the acts of its officers while engaged in the exercise of a police power, is equally well settled. Williams v. Yorkville, 59 Wis. 119, opinion of Lyon, J., .and cases cited therein. It follows that it was error to modify the judgment as was done by the court By the Court.— Order reversed.