State ex rel. Ollinger v. Town of Manitowoc

Rewmab, J. In enacting the ordinance in question, the county board was acting in a political and governmental ' function, in the interest of the public, and not in the inter-ést or for the county in its private or corporate capacity. The writ of certiorari, upon which it should be sought to ■ review its action, should be directed to the officers or board ' whose act it was sought to review, whenever that is a per- : tnanent body and has control of its own records. And this -is true even where a clerk has custody of the records as the [549] mere agent of the corporation. The writ, in that case, should not be directed to the clerk, hut to the board or body. If misdirected, the writ must be superseded or quashed. The court acquires no jurisdiction by it. State ex rel. Flint v. Fond du Lac, 42 Wis. 287; State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4; State ex rel. Tibbits v. Milwaukee, 86 Wis. 376; Ex parte Mayor, etc. of Albany, 23 Wend. 277; People ex rel. Huntting v. Highway Comm’rs, 30 N. Y. 72; Roberts v. Highway Comm’rs, 24 Mich. 182. The- writ in this case was misdirected. It should have been directed to the county board of supervisors of Manitowoe county, and not to the county clerk. The appearance of the county, clerk in the action, and his attempt to make a return to the-writ, was futile to give jurisdiction of the board of supervisors, or of the case. The return is a nullity, and confers, no jurisdiction, either of the person or of the subject matter. People ex rel. Huntting v. Highway Comm’rs, supra. Until the proper defendant is before the court, the court can have, no jurisdiction of the subject matter. This can only he acquired by a proper writ, and a return made by the proper officer or board. The writ in this case should have been directed to the board of supervisors, and the return should have been made by the supervisors themselves, or a majority of them. Plymouth v. County Comm’rs, 16 Gray, 341. Bor is a return, signed only by an attorney for the board,, sufficient. Tewksbury v. County Comm’rs, 117 Mass. 563; Worcester & N. R. Co. v. Railroad Comm’rs, 118 Mass. 561; Chase v. Board of Aldermen, 119 Mass. 556. So, neither the-board of supervisors ñor the subject matter, the ordinance, was before the court. It is said to be proper, in some cases involving private rights, to join as defendants persons having an interest adverse to the relator. However that may be, and whether it is applicable to cases involving only questions of public right, it is difficult to see how either of the towns of Bewton or [550] Manitowoc or Manitowoc county have any interest, in their private or corporate capacity, in this matter. Residents of the territory, or taxpayers, may be said to have an interest; but the corporations, as such, can have no interest. And their voluntary appearance in the action could not, at least in the' absence of interest, confer jurisdiction. Nor is it perceived how the attempted appearance of the board of supervisors, after judgment, aids the judgment. It was void when rendered. It was void when the board of supervisors was represented as appearing. The court decided nothing and changed nothing in consequence or on the strength of that appearance. It is difficult to apprehend how the mere voluntary appearance by the board of supervisors, and its informal adoption of this nullity, could impart to it life and energy. This was held doubtful in People ex rel. Hunttimg v. Highway Gomm’rs, 30 N. Y. 12, although the proper defendants appeared before judgment and litigated. This does not question the effect of an appearance by a natural person in his own right, after judgment, in an ordinary action. This case is not affected by those cases which hold that the writ should not be quashed, nor the action dismissed, after a hearing on the merits. Those are none of them cases of misdirection of the writ. They were all cases where the writ had been properly issued and returned, but was liable to be quashed for irregularities. McNamara v. Spees, 25 Wis. 539; Morse v. Spees, 25 Wis. 543; Owens v. State, 27 Wis. 456; State ex rel. Dalrymple v. Milwaukee Co. 58 Wis. 4. The writ should have been quashed on the motion of the county clerk, the party served as defendant therein. By the Oowrt.— The judgment of the circuit court is reversed, and the cause remanded with directions to quash the writ.