State ex rel. Loehr v. Hanson

Owen, J. Unless the power of the town board of supervisors had been theretofore exhausted, its order of January 27, 1917, denying the petition was valid, and, as the subsequent proceedings leading to' a reversal of that order were in all respects regular, appellants are entitled to the relief prayed for. The trial court thought that jurisdiction to act on the 27th had been lost (a) by adjourning for more than thirty days from December 18, 1916; (b) by not giving notice of adjournment as required by statute; and (c) by not making award of damages within forty days from December 18, 1916. Although the meeting of January 27th was held pursuant to new notices, which formed the basis of a new and independent proceeding, the trial court evidently construed the meetings of December 18th, January 10th, and January 27th as constituting but one proceeding instituted by the notices of the meeting of December 18th, [500] and, having acquired jurisdiction and thereafter lost it, the power of the town board to decide upon the petition had vanished. Expressly withholding assent to the proposition that an administrative body charged with quasi-judicial duties can dissipate its power, and deprive the public of the benefit of its exercise, in any such manner, we will inquire, first, whether the town board ever acquired any jurisdiction which it could lose. That such a body does not exhaust its power by assuming to act without jurisdiction is settled by State ex rel. Baker v. Haugen, 164 Wis. 443, 160 N. W. 269. That case is authority for the proposition that if the town board had assumed bo act upon the petition without jurisdiction — that is, without giving the notices 'required by statute, resulting in an invalid decision, — it could have proceeded over, ab initio, acquired jurisdiction, and exercised its power in a valid way. Hence, if it acquired no' jurisdiction tO' act at its meeting of December 18th, it could do- as it did on January 10th, order the serving of new notices in the manner required by statute, thereby acquiring jurisdiction for future valid action. It is conceded, of course, that if the board did not have jurisdiction to decide upon the petition on December 18th it had none on January 10th. Did the boa'rd have jurisdiction on December 18th? In order to acquire jurisdiction, notices must be given and served within the time, upon the persons, and in the manner prescribed by statute. It cannot proceed until it is satisfied that such notices had been so served. Sec. 1268, Stats. The record of the town clerk made at the meeting of December 18th, as well as that of January 10th, shows affirmatively not only that the supervisors were not satisfied of such fact, but that one owner of real estate through which the proposed highway would run had not been served with notice, and there is no pretense here on the part of any one to the contrary. Under such circumstances it is plain that the town board had no jurisdiction to act upon the petition at the meeting of December 18th or January 10th, and [501] that it was its privilege and its duty to give notices of the meeting of January 27th, unless its power was otherwise exhausted. This brings us to- a further consideration, not raised in briefs or upon argument, which stands as a more serious challenge of the power of the board to act on January 27th. In sec. 1276, Stats., it is provided: “Failure of the supervisors to act upon the application [to lay out the highway] required by section 1267 within sixty days after the same was filed in the town clerk’s office shall be deemed a refusal to lay out, alter, widen, or discontinue the highway; and any person who shall consider himself aggrieved by such refusal, may appeal therefrom in the manner herein provided for an appeal from the order refusing to lay out, alter, widen, or discontinue the highway.” There is a similar provision in sec. 1269 in the following language: “Such order [the order laying or refusing to lay the highway], together with the award of damages hereinafter mentioned, shall be so filed [in the town clerk’s office] within ten days after the day fixed by their notice or adjournment for deciding upon such application; and in case said supervisors shall fail to file such order and award within the ten days aforesaid they shall be deemed to have decided against such application.” This latter provision was considered in State ex rel. Hewitt v. Graves, 120 Wis. 607, 98 N. W. 516. It was there held that the failure to file the.order and award of damages within the ten days amounted to a refusal of the town board to grant the application. It was said: “When the time had expired, and no order and award had been filed, the statute stepped in. and determined the fact that the application had been refused. It was as really and effectually refused as if a formal order of refusal had been filed, and under the terms of sec. 1283 it could not be acted upon again within the ensuing year.” [502] The same effect must be given to the provisions of sec. 1276, providing that if the petition is not acted upon within sixty days such failure shall be deemed a refusal to lay out the highway. In this case the petition was filed with the town board on the 8th day of September, 1916. Sixty days from that time was November 7th. Nothing had been done by the town board within that time, nor was anything done until December 5th, when it was decided to give notice of the meeting on December 18th. On the 7th day of November, therefore, “the statute stepped in and determined the fact that the application had been refused.” Under sec. 1283 the matter could not be acted upon again for the term of one year from November 7th. It follows that the power of the town board was exhausted by force of the statute of November 7, 1916. The appeal from the order denying the petition was not taken until February 20th. The statute required that it should be taken within thirty days from the time of the denial of the petition, which was November 7th. The proceedings on appeal, therefore, were of no force or effect. The order of the commissioners laying out the highway amounted to nothing. The'town board has no authority to proceed in the matter of opening the highway, and the demurrer to the return was properly sustained. By the Court — Order affirmed.