State ex rel. Skogstad v. Anderson

109 N.W. 981, 130 Wis. 227, 1906 Wisc. LEXIS 21

• Court: Wisconsin Supreme Court
• Decided: December 4, 1906
• Status: Published

Opinion

Dodge, J.

Tbe writ of certiorari is not a writ of right, but is issued only in tbe discretion of tbe court as an extraordinary process when other and ordinary remedies are inadequate. Harris, Certiorari, § 43; Knapp v. Heller, 32 Wis. 467; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 77 N. W. 167; State ex rel. Meggett v. O'Neill, 104 Wis. 227, 80 N. W. 447; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 619, 93 N. W. 542. It cannot issue save upon the relation of a party to the record sought to be reviewed, either in name, or in substance in the sense that the decision sought to be reviewed would involve special, immediate, and direct injury to his interests. 6 Cyc. 766 et seq.; People ex rel. Lawrence v. Schell, 5 Lans. 352; State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 107 N. W. 500; State ex rel. Sullivan v. Drake, ante, p. 152, 109 N. W. 982. Applying these principles to the present situation, the effect of the decision of the jury awarding damages to Anderson is merely to create an ostensible and prima facie claim against the town of Chimney Rock: a legal claim if the decision of the jury is valid,, no claim at all in fact or law if the appellate proceedings are void, as relator claims. It in no wise affects the relator save as one of the taxpayers-of that town. Hence it is. obvious that the only direct effect of the decision or its enforcement would be to subject the town to a liability. The town is a legal person, capable of making its own defenses, and the effect on the plaintiff is neither special, immediate, nor direct. It is not special, for it falls upon him only in common with the great body of taxpayers. It is not direct or immediate, because it first falls upon the town and reaches him only through the general process of taxation, whereby some portion of tlio town’s expenses is distributed amongst the property owners. Kircher v. Pederson, 117 Wis. 68, 74, 93 N. W. 813. Another consideration tending strongly to justify the discretion exercised by the trial court in quashing this writ is that, while taxpayers, as also stockholders in private corporations, may in a proper case invoke the aid of a court to prevent depletion of the common treasury or to prevent an illegal charge thereon, the primary duty and right to resist such injury rests in the corporation itself acting by its constituted authorities, and no member thereof will be heard to champion the rights of such corporation without showing that the officers refuse to do so either by words or acts. Cunningham v. Wechselberg, 105 Wis. 359, 361, 81 ; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 93 N. W. 542; State v. Browning, 27 N. J. Law, 527, 529; 6 Cyc. 768, 769. Before tlie relator can suffer any injury from this award it must he presented either to the town hoard or to the electors in town meeting, and there is surely no presumption that either body will allow or pay it if illegal. Again, it being disallowed, the respondent Anderson must sue upon it, and in such suit all the grounds of invalidity suggested by either the petition or the writ now before us will have ample opportunity for consideration. Eor these reasons, without searching for others, we think the trial court rightly exercised its discretion in quashing the writ.

By the Court. — Order appealed from is affirmed.