City of Madison v. Fuller & Johnson Manufacturing Co.

Esciiweiler, J. The defendant pleaded and relied upon as a bar to plaintiff’s right to bring this action that which was at the time of the commencement and trial of this action sec. 926 — 125q, Stats., the parts whereof so far as material here reading as follows: “No action shall hereafter be brought or maintained to annul or set aside any final order of any circuit court, or action of the common council of any cit)L heretofore made or taken for the vacation of any . . . plat, street, ... or any part thereof, unless such action be pending or be commenced within six months from the passage and publication of this act; and at the end of such six months such attempted vacations shall be hereby validated except as they may be invalidated by actions then pending. ...” This statute is plainly one of limitation and of repose and requires a fair and reasonable construction (Fish v. Collins, [469] 164 Wis. 457, 461, 160 N. W. 163) to carry out its manifest purpose of putting a quietus, after the period fixed therein, ttpon subsequent attempts by any form of action to upset or overturn proceedings theretofore had or attempted to be had with regard’ to the vacating of streets and highways. Such a statute is clearly within the legislative province to enact, for it is with reference to a subject matter, the public highways of the state, over which the legislature has the primary power as to the laying out and vacating thereof. Chicago & N. W. R. Co. v. Railroad Comm. 167 Wis. 185, 191, 167 N. W. 266; Krueger v. Wis. Tel. Co. 106 Wis. 96, 104, 81 N. W. 1041; 37 Cy.c. 45; 13 Ruling Case Law, 163. It is a power which, though it may delegate to some appropriate administrative body, nevertheless is still the exercise of such power, by the state itself. Chicago & N. W. R. Co. v. Railroad Comm. 167 Wis. 185, 192, 167 N. W. 266; Warden v. Hart, 162 Wis. 495, 497, 156 N. W. 466. Having the primary power to prescribe the regulations for the surrender of the public easement in and to that which theretofore had been enjoyed by the public as a public highway by prescribed vacation proceedings, the legislature may, by subsequent legislation, ratify that which was attempted to be done or imperfectly done at some prior time. State ex rel. Ervin v. County Board, 163 Wis. 577, 581, 158 N. W. 338; 37 Cyc. 131. Construing this statute as an entirety, as it is proper we should (State ex rel. Milwaukee v. Milwaukee E. R. & L. Co. 169 Wis. 183, 190, 172 N. W. 230),it must be held to be a complete bar to the plaintiff obtaining the relief sought in this action. Although neither the complaint nor judgment in this action makes mention of the various proceedings with reference to this particular strip of land fifty-one feet in North Dickinson street which were haqL and done by the respective parties in 1903 and 1904 and which are recited in the fore [470] going statement of facts, nevertheless the effect of the judgment below, if affirmed here, is a virtual and effective setting aside and holding for naught all that was so done. The silence in that regard in both the complaint and the judgment does not alter the substance and effect of the judgment or make this any the less an action to annul or set aside the prior action of the common council made or taken for the vacation of the part of the street involved. We deem it unnecessary to determine, and therefore express no opinion, as to whether the judgment of the circuit court of April, 1904, in form vacating the strip of land in question, was void because exceeding the jurisdiction of such circuit court, as is contended for by plaintiff here in reliance upon the case of Petition of Hayes, 139 Wis. 163, 120 N. W. 834, because the application of the above quoted statute to the facts here presented is not dependent on such judgment. When the common council, acting upon a subject matter over which it had unquestioned jurisdiction, namely, the vacating of the strip of street here involved, by formal resolution extended and widened Water street over and upon the land then conveyed to it by defendant, and by further formal resolution -accepted the said conveyance so reciting the consideration and without reservation or limitation, and all after the judgment in the action then brought and to which the plaintiff was a party, all these proceedings being-had in good faith by the parties concerned and evidently being considered all that was necessary to effect the vacation of the fifty-one feet on Dickinson street, there was either a valid, effectual vacation thereof or an attempted vacation. If valid, it is binding ón the city by its own force; if but an attempt, it becomes binding by force of the legislative decree embodied in sec. 926 — 125q, Stats., supra. The power thus exercised by the legislature -is independent and paramount, and the time having elapsed within which [471] there was opportunity for repentance or repair, ’the attempted vacation has become absolute. This makes it unnecessary to consider or pass upon any of the other questions presented, and it follows that the judgment of the circuit court must be reversed and the action dismissed. By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.