State ex rel. Van Lyssel v. Scheuring

Siebeckee, J. The return of the chairman of the county board of supervisors to the writ alleges that it will be necessary to bridge East river in order to open and put the proposed highway in condition for travel; that such bridging will impose a probable expenditure of several thousand dollars ; and that he is without authority to proceed in the matter as directed by the writ. It is also alleged that there are no funds in the county treasury which can be applied in payment of the necessary cost and expenses of opening the proposed highway and constructing the bridge as a part thereof nor for payment of any other costs incident to putting the highway in proper condition for travel. It is also alleged by defendant that no provision for funds to pay these costs and expenses is made in the tax levy now being collected, nor for borrowing the amounts needed for this purpose, and that the county is wholly without available means to pay them. In considering the demurrer to the return these facts stand admitted. Assuming, without deciding, that this bridge is within the purview of the provisions of sec. 1338, Stats., as amended by ch. 531, Laws of 1911, there appear insuperable obstacles to'the enforcement of the writ in this action. If, [96] as alleged in the return, no provision has been made hy the county for payment of the cost and expense of opening the highway, including the construction ,of a bridge over the East river, arid no funds are at hand and no means of any nature are available hy which the cost of the undertaking can be paid, then no way exists for the defendant as chairman of the county board of supervisors to execute the commands of the writ. As stated hy Judge Hastings in his opinion on overruling the demurrer: “Just what the chairman is to do in the performance of his duty in opening up a new highway with expensive bridges to he constructed is not clear. He certainly is not required to advance the necessary money. He cannot have it done at the expense of the towns so as to make the towns indebted to a contractor who builds the bridges. The cost can only be collected from the towns as part of the county tax. While no provision is 'made requiring the county to raise and provide the chairman the means or authority directly given him to make it a county charge, the act seems to contemplate that he shall use county funds.” It cannot he made the official duty of the chairman of the county hoard of supervisors to open the proposed highway and construct a bridge as alleged in the return, where the county has provided no available means and where no authority to make the county or the towns liable therefor has been conferred. State ex rel. Winslow v. Mount Pleasant, 16 Wis. 613; State ex rel. Gericke v. Ahnapee, 99 Wis. 322, 74 N. W. 783; State ex rel. Redenius v. Waggenson, 140 Wis. 265, 122 N. W. 726. The court properly overruled the demurrer. By the Court. — The order appealed from is affirmed.