In re Proposed Farm Drainage

241 N.W. 347, 207 Wis. 338, 1932 Wisc. LEXIS 111

• Court: Wisconsin Supreme Court
• Decided: March 8, 1932
• Status: Published

Opinions

Fairchild, j.

The finality of the objectors petition provided for in sec. 88.075, Stats., is made to appear by a reading of the language used by the legislature. This statute, as it was at the time when the circumstances occurred out of which this controversy arose, read:

“Whenever the owners of a majority of land in a farm ‘drainage’ or a majority of the owners owning one-third in area of such lands shall file with the county judge having jurisdiction of such drainage a petition requesting that no more work be done in and no more expense made against such drainage, the court shall order a hearing thereon, notice of which shall be posted in three public places on or in the immediate vicinity of the land included in the ‘drainage’ at least ten days before the date of hearing. If on such hearing the court shall find that such petition is signed by the required number of owners and that notice of hearing was properly given it may enter an order directing that no more work be done in or expense created against such ‘drainage.’ ”

By construction of this section the objectors are permitted to interpose their opposition to the “drainage” as soon as they are advised that the proceedings are under way and that their interests will be affected because of the inclusion of their lands therein.

The creation of a “drainage” calls into action a legislative function. Proceedings to initiate enterprises of this sort must respond to constitutional requirements fixed by the legislature. Objectors’ privileges are likewise legislatively defined. It is not a matter in which the court has power to exercise its discretion. In re Incorporation of North Milwaukee, 93 Wis. 616, 67 N. W. 1033; State ex rel. Skordahl v. Flaherty, 140 Minn. 19, 167 N. W. 122; note 69 A. L. R. 266.

The court is limited to finding the existence of such facts as the legislature declares to be controlling. When, upon the hearing of a petition, the controlling facts are shown to exist and the requirements which condition the right to. stop the “drainage” and prevent further work and expense are established, the court must make its order accordingly and the work and expense must stop.

The facts which control the action of the court in this case were established in the proceedings before the county court. The same matters were fully disclosed in the record upon the appeal to the circuit court. The county court was of the opinion that the objectors were not entitled to their relief because, as it held, the petition was prematurely made. This was error, as the circuit court concluded when by its order it gave the force and effect to the objectors’ petition which the legislature provided it should have.

•The matter of the collection of expenses incurred in the proceedings for “drainage” up to the time of the stopping of the work and expense is provided for in sub. (2) and (3) of sec. 88.075, Stats. After the entry of the order by the court it becomes the duty of the county clerk to certify to the town, village, or city clerk the amount of taxes to be by them-collected for the purpose of paying any indebtedness of such “drainage,” with the names of the persons from whom the same is to be collected, and such persons are to be liable for all debts existing against the “drainage” at the time of the entry of the order.

By the Court. — The order of the circuit court is affirmed.