State ex rel. Gray v. Common Council of Oconomowoc

Dodge, J. 1. The order denying the relator’s motion to-require amendment of the return to the writ of certiorari is. not appealable. It is neither an order in an action which determines the same and prevents a judgment from which, an appeal may be taken, nor, if in a special proceeding, is it a final order. The appeal from that order must be dismissed. 2. The record contains no order which can be in any wise identified with that described in the notice of appeal as entered December 10th. It is not discoverable from the record that any such order was made, but, whether made or not, the appeal therefrom cannot be sustained where appel [627] lant has not caused it to be transmitted to this court. The appeal so described in the notice must therefore be dismissed. 3. Upon the appeal from the final order or judgment,, which both denies the motion to require an amendment of the return and quashes the writ of certiorari, the question arises whether any error was committed in so denying the motion to amend, which question, however, is not one of difficulty. While it may well be within the power of the court to require further return where the commands of the writ are not complied with, or to permit amendment of return at the suggestion of the respondent when it is desired to correct some mistake therein, such a motion as this cannot be entertained. The return purports to be complete in itself, except, perhaps, for the omission of the certified transcript of the assessment roll, as to which, however, it is stated that a certified copy is impossible, as the roll is not in the custody or control of the respondent, and the writ is complied with as far as possible by certifying that the lists attached are correct lists as taken from that roll. The motion is an attempt upon affidavits to traverse the return, and to seek, through the medium of an order, an adjudication that the return is not true in fact, and a requirement that the respondents state the contrary of what they have already certified. This cannot be done. The return imports absolute verity so far as it is responsive to the writ. Harris, Certiorari, §§ 126, 213. The relator who selects certiorari as his method of review and remedy subjects himself to having his rights decided upon such statement of facts as the return may make, if so responsive. The scope of the so-called “motion to require amendment” being as stated-above, the denial thereof was entirely proper. The order quashing the writ is fully supported by the return, which shows a petition, found upon investigation by the common council to be made by the necessary number [628] and amount of taxpayers, a due consideration of tbe prayer of said petition, and action thereon in accordance with the power conferred on the council by the charter. It further shows, that the relator’s pecuniary interest in the matter is most trifling. After return, it is proper to quash the writ upon facts showing either that the discretionary power of the court to review the proceedings ought not be exercised under the circumstances (State ex rel. Clancy v. McGovern, 100 Wis. 666; State ex rel. Schintgen v. Mayor of La Crosse, 101 Wis. 208) or on the ground that the proceedings are with full jurisdiction and regularity, so that the writ, if continued to further hearing and judgment, would result only in an affirmance. It is said in State ex rel. Cameron v. Roberts, 81 Wis. 292, 296, that, when the latter fact appears, it is quite immaterial whether the court quashes the writ or affirms the proceedings. The relator further complains that the order or judgment of August 30th is improper in that, while it quashes the writ, it also in terms adjudges the validity of the common council proceedings, and affirms them. If the writ be quashed upon preliminary considerations which go to its validity or the propriety of its issue, or solely on the ground that facts are not presented to justify the court in reviewing the proceedings at all, it may well be that the regularity of the proceedings is not judicially passed upon, and a judgment affmning the same would differ in effect from a mere order to quash. But where the writ is quashed for the reason that the return shows the proceedings to be with jurisdiction and regular, it is, in effect, a judicial determination of such regularity; and therefore an affirmance (while irregular) could not prejudice the relator, for it would express no more than is expressed in the order quashing the writ. State ex rel. Cameron v. Roberts, supra; State ex rel. Ennis v. Janesville, 90 Wis. 157, 160. It is not distinctly apparent here upon Avhich ground the court proceeded, except as it is inferable from [629] the judgment itself, and since ’ in that judgment the court has included words of affirmance we must presume that the writ was quashed because the return showed the proceedings jurisdictional and regular, hlo prejudice, therefore, results to the relator from these perhaps unnecessary words, provided jurisdiction and regularity in fact appear. The only question made upon the proceedings is whether the petition presented was sufficient to confer jurisdiction by reason of signature by the requisite proportion of taxpayers. This question was one necessarily for investigation and decision by the council. La Londe v. Barron Co. 80 Wis. 380; In re Kiernan, 62 N. Y. 457; Welty, Assessments, § 280. They appear to have investigated it in a manner consistent with the organization of such a body, namely, through one of their regular committees (State ex rel. Starkweather v. Common Council of Superior, 90 Wis. 612), and to have decided it affirmatively by adoption of the committee’s report. This is conclusive on certiorari, and justifies the conclusion that judgment of affirmance would have been proper, and that the words of affirmance contained in the order quashing the writ are not prejudicial to appellant. The several appeals being based on a single notice, costs should be taxed as on a single appeal. Nash v. Meggett, 89 Wis. 486, 497. By the Court.— The appeals from the'order dated September 21,1897, and from the order entered December 10,1897, are severally dismissed. The order or judgment quashing the writ of certiora/ri is affirmed.