State ex rel. Dosch v. Ryan

WiNsnow, J. This is an action of mandamus brought by the relator to compel the defendants, as town supervisors, to alter a certain highway in accordance with the determination of commissioners. It appeared upon the trial that in February, 1903, the relator with other freeholders applied to the defendants, as supervisors, to alter a certain highway in the town by laying a piece of new road and discontinuing a portion of the old highway, under see. 1265, Stats. 1898, and [601] that on March 14th following the supervisors denied the application ; that thereafter an appeal was taken from such denial, and commissioners were appointed by the county judge to review the decision of the supervisors, under secs. 1276-1279, Stats. 1898; that the commissioners met, and two of their number were in favor of making the alteration, but one was opposed thereto; that Dosch, the relator, was then sent for and asked if he would be willing to grade the piece of new road and build a necessary bridge thereon at his own expense, and he agreed that he would do so; that Dosch thereupon executed and gave to the commissioners his bond in the sum of $1,000 running to the town, binding himself to build the road and the bridge on or before November 1, 1904, and further conditioned that if he failed to do so then such road should not be laid or opened; that thereupon the commissioners unanimously decided to alter the road as prayed, and filed their written decision to that effect, accompanied by the bond. The trial court found that the majority of the commissioners were not influenced in their action by the agreement and bond made by Dosch, and that the decision was in all respects valid, and awarded the peremptory writ of mandamus. We find ourselves unable to agree with the conclusions reached by the trial judge. Highways are only to be laid out when the public good will thereby be promoted. Private considerations or inducements cannot rightly enter into the question in any degree. If private individuals with special interests were allowed to bargain with public officers who are exercising this important and sovereign power, and to offer inducements of any kind tending to influence their free action, the interests of the public would be at once in jeopardy. Not only are such bargains void as against public policy, but official action based thereon ceases to be based solely upon the public welfare, and becomes tainted with some degree of private interest. To approve of such a course would be to open the door to [602] injustice and favoritism. State ex rel. Curtis v. Geneva, 107 Wis. 1, 82 N. W. 550; Shelby v. Miller, 114 Wis. 660, 91 N. W. 86. It avails not to say that the majority of the commissioners testify that they would have decided to lay the road had the bond not been given. They did not do so. No decision was made until after the bond was given. The decision is conclusively shown to have been, in part, based upon the fact that the bond had been given. No nice separation of motives is possible. There is safety only in the entire prohibition of such transactions. By the Gourt. — Judgment reversed, and action remanded with directions to quash the writ.