State ex rel. Schroeder v. Behnke

Tbe following opinion was filed April 24, 1917: SiebecKER, J. Tbe ruling of tbe trial court to tbe effect that tbe town board bad no jurisdiction in tbe matters presented by tbe petition of tbe resident freeholders of tbe town for laying out a new road and discontinuing an old one was based on tbe grounds that tbe town board, under tbe provisions of sec. 1265, Stats., as amended by cb. 605, Laws 1911, bad no “power or authority to alter, change, or discontinue . . . any highway or portion thereof which shall have been improved by tbe county board by tbe expenditure thereon of county money.” Tbe court held that tbe old portion of tbe road in question was improved by the county board within tbe calls of this statute. Tbe fact is undisputed that tbe existing bridge over the creek on this old road was constructed by tbe town and that tbe county aid provided for by sec. 1319, Stats., was obtained upon demand of tbe town. This statute empowered towns to construct bridges, and upon compliance with tbe provisions thereof by the town tbe county is compelled to provide for tbe payment of such portion of tbe cost of a bridge as tbe statute specifies. It is plain from tbe terms of tbe statute that bridges constructed under it are town bridges for tbe improvement of highways. Tbe aid required of counties to pay a portion of tbe cost of such bridges does not make them county bridges within tbe contemplation of tbe provisions of sub. 7, sec. 1319, nor under tbe provisions of sub. 1, sec. 1317m — 5. Tbe provisions of sec. 1265 depriving towns of “power or authority to alter, change, or discontinue . . . any highway or portion thereof which shall have been improved by tbe county board by tbe expenditure thereon of county money,” clearly embrace only such highways as have been improved by a county board at tbe expense of tbe county as specified in sub. 1, sec. 1317m — 5, and [68] sub. 7, sec. 1319. It is manifest that tbe old portion of the road in question with the bridge thereon is not such a road. It follows that the town board has jurisdiction in the matters presented by the petition of the resident freeholders of the town and that the commissioners appointed by the county court on appeal from the town board’s refusal to act had jurisdiction of the application presented to the town board. The question remains whether the application is one to lay out a new road and discontinue an old one, or whether it is in substance and effect an application for the alteration of the existing road. The language of the application speaks of the proceeding as laying out a new road and discontinuing an old one, but an examination of the location and courses of the described roads shows, as the plat indicates, that if the petition is granted the practical effect is to change the course of the existing road for a distance of about 180 rods from the point where it intercepts an existing highway. It is manifest from the location of the existing portion of the old road sought to be discontinued and the proposed road with its connection with the old road that the proceeding simply constitutes an alteration of the existing road and should be so treated. The fact that the language of the application speaks of laying out a new road and discontinuing an old one is not controlling of the actual physical situation presented by the proceeding. As stated in State v. Reesa, 59 Wis. 106, 17 N. W. 873, in reference to a proceeding like this: •“But words do not make things or subjects, but attempt to express them only, and when the evidence shows precisely what the thing or matter really is, then mere words should not be accepted as changing such thing or matter by the mere force of definitions.” We are persuaded that the proceeding is in substance and effect one for the alteration of the existing road and that it must be so treated. The effect, therefore, of laying out the road on the proposed course operates to discontinue the de [69] scribed portion of the old road. See State v. Reesa, supra; Hark v. Gladwell, 49 Wis. 172, 5 N. W. 323. The order of the commissioners appointed by the county court is legal and valid and the trial court erred in adjudging it to be illegal and void. By the Gourt. — The judgment appealed from is reversed, and the cause remanded to the circuit court with direction to award judgment directing that a peremptory writ of mandamus issue commanding the town board of the town of Excelsior to proceed to lay out and open the road as determined by the commissioners appointed by the county court and assess damages therefor as required by statute. A motion for a rehearing was denied, with $25 costs, on June 28, 1915.