State ex rel. Johnson v. Hintgen

WiNsnow, C. J. Sec. 1308 of the Revised Statutes of 1878 (which was in force at the time of the opening of the highway, but was repealed by ch. 337, Laws of 1911) provided that county boards might adopt any main traveled highways as county roads and thereafter cause the same to be kept in good repair so long as they remain under their control. No special provisions are contained in the statute prescribing the method of such adoption, therefore it would seem clear that a formal resolution must be held sufficient. [359] Conceding, without deciding, that neither of the resolutions passed by the county board in the present case in 1891 and 1892 was effective as an adoption, because the road had not then been constructed or traveled and hence was not “a main traveled highway,” we are clear that the resolution of 1894, passed after the opening of the highway, should be construed as supplying every defect that there might be in the previous resolutions. It was evidently the intent of that resolution to cure every possible flaw in the former proceedings, and under the liberal rule relating to the proceedings of such bodies, which requires the evident intent of the body to be carried out although inartificially expressed, we can entertain no doubt that the resolution should be given effect as an adoption of the highway. Bartlett v. Eau Claire Co. 112 Wis. 237, 88 N. W. 61. Upon the second proposition, however, the conclusion reached by the circuit judge must be sustained. Unless there are funds in the county treasury which are available, i. e. which may properly be used for the purpose of repairing the highway, the county highway commissioner cannot be compelled by mandamus to do the work.1 This was the conclusion reached under a statute similar in every essential respect (sub. 2, sec. 1338, Stats. 1911) in the ease of State ex rel. Van Lyssel v. Scheuring, 154 Wis. 93, 141 N. W. 1001. By the Court. — Judgment affirmed.