State ex rel. Ingold v. Mayor of Madison

Eschweiler, J. Sec. 926 — 8, Stats., provides in substance that upon the petition of a specified number of resident electors, freeholders of any one election district within any ward subdivided into two or more election districts .or of any undivided ward within any city of the third or fourth class incorporated under special charter, demanding that such election district be constituted a ward, or such ward be divided, such council shall, after proper publication, proceed by ordinance to create such district and any other district or districts in such ward into wards or to divide such ward into wards, provided that the council may, by a vote of at least three fourths of all its members, change the boundaries of such district or of such proposed ward. Defendants contend that the failure to cause notice of the filing of such petition to be published as is required by said statute was a prerequisite to their obligation, if any, to act, and further that the required action involved the exercise of a legislative discretion vested in the common council as a legislative body and therefore not subject to such control as was here attempted by the writ. The notice, however, is for the purpose of conveying in [136] formation of the request to others than the members of the common council and who may be interested, and where, as here, such notice has been given, the prior lack of it cannot defeat the petitioners’ right. The statute makes it mandatory upon the common council to make a new ward in the city which shall include the territory within the election district. It leaves open as a matter of discretion only the manner in which such new ward shall be created, namely, either by making it entirely of such election precinct or by adding other territory to the same. The writ herein does not attempt to control or regulate the manner in which the common council shall exercise that discretion, but only effectuates the mandate of the statute. Where there is a plain duty as here involved, it is a well recognized and long established doctrine that compliance therewith may be enforced by mandamus. State ex rel. Burnham v. Cornwall, 97 Wis. 565, 73 N. W. 63; State ex rel. McGovern v. Williams, 136 Wis. 1, 116 N. W. 225; State ex rel. Husting v. Board of State Canv. 159 Wis. 216, 150 N. W. 542; People ex rel. Rapid Transit S. C. Co. v. Craven, 210 N. Y. 443, 449, 104 N. E. 922; People ex rel. Cayuga Nation v. Land Comm’rs, 207 N. Y. 42, 50, 100 N. E. 735. By the Court. — Judgment affirmed. Siebeoker, J., took no part.