State ex rel. Hewitt v. Graves

Winslow, J. This is an appeal from a final judgment quashing a writ of certiorari upon the return. The action was brought to review the proceedings for laying out a high-rvay in the town of Weston, Marathon county, and to reverse the order laying out the highway. The return showed, in brief, that a sufficient petition for the highway was filed in the town clerk’s office April VI, 1903; that on May 1st following tho town, supervisors met, and fixed upon May 15th as the time for deciding on the petition, and ordered that notices of the hearing he given; that two members of the board met pursuant to the notice on May 15th, decided that notices had been properly posted and served as required by law, and made an order reciting this fact, and ordering that the highway he laid out as prayed, which order was dated May, 1903,. and at some time was filed in the clerk’s office, but on what exact date it was signed or when filed does not appear; that no award of damages was ever made or filed on this order that on July 10th following new notices. of hearing of the same petition were ordered given for July 21th; that on July 24th the hoard, deeming these notices defective, ordered new notices given for August 7th; that on August 7th an order was made and filed laying out the highway, and an award of damages was made and filed on the same day. The question presented is whether the supervisors had lost jurisdiction of the proceedings prior to the making of the order of August 7th, and the answer to this question depends upon the construction of our statutes governing the laying out of highways in towns. These statutes are not seriously com [609] plicated, and their general purpose is evidently to provide a siipple and effective proceeding by which necessary highways may be secured and the damages determined. The intent to make the proceeding expeditious is very plain, as well as a corresponding intent to relieve a property owner from more than one application during any one year. Thus the statutes provide for a petition signed by six freeholders (sec. 1265, Stats. 1898), for a notice of hearing of the petition to be posted and served (sec. 1267), for a hearing and decision according to the notice (if it appears that such notice has been properly given), and that adjournments of the hearing may be taken, not exceeding in all thirty days from the time of the first meeting (sec. 1268), for the making and signing of an order laying out the highway if such be the decision, and for the filing of such order together with an award of damages in the clerk’s office within ten days after the day fixed for hearing or the last adjourned day, “and in case such supervisors shall fail to file such order and award within the ten days aforesaid, they shall be deemed to have decided against such application” (sec. 1269). Einally, in sec. 1283 it is provided that the determination of the supervisors in refusing to lay out a highway,shall be final (unless appealed from) for one year thereafter, and no application for laying the same out shall be again acted on within said year. The proceeding is an adversary one, purely a creature of statute, and the statute must be strictly followed. Jurisdiction can only be obtained and retained by compliance with the requirements of the statute. If, after the due giving of a valid notice fixing the time for their first meeting, the supervisors do not make and file their decision and award of damages within the time required by sec. 1269, they lose all jurisdiction of the proceeding. Ruhland v. Hazel Green, 55 Wis. 664, 13 N. W. 877. The application: of these principles to the instant case show that the judgment rendered below was erroneous. The return shows that no [610] tice of bearing was ordered and given for May 15th, and tbat at tbat time tbe supervisors were satisfied that it bad been properly served and posted. These facts being recited in the clerk’s minutes, as well as in tbe order afterwards made by tbe supervisors, and there being no evidence of any kind to tbe contrary, they must be considered as conclusively established. What might be the result bad tbe notices been insufficient, or not properly served or posted, we need not consider, because tbat case is not here. There can be no doubt tbat under tbe facts of this case jurisdiction was lost by tbe failure to file tbe order and award of damages within tbe time limited by sec. 1269. Tbe longest time allowed by tbe statute for tbe purpose under any circumstances is forty days from tbe day fixed by tbe notice for deciding on tbe application (Ruhland v. Hazel Green, supra), and tbat time bad passed long before tbe order of August 7th was made. When tbe time bad expired, and no order and award bad been filed, tbe statute stepped in and determined tbe fact tbat tbe application bad been refused. It was as really and effectually refused as if a formal order of refusal bad been filed, and under tbe terms of sec. 1283' it could not be acted upon again within tbe ensuing year. Tbe order of August 7th should have been reversed. By the Oourt. — Judgment reversed, and action remanded with directions to reverse tbe proceedings of tbe supervisors.