State ex rel. Tibbits v. City of Milwaukee

57 N.W. 45, 86 Wis. 376, 1893 Wisc. LEXIS 195

• Court: Wisconsin Supreme Court
• Decided: November 28, 1893
• Status: Published

Opinion

PiNNey, J.

Tbe circuit court could not review the proceedings mentioned in tbe writ in this case, for tbe reason that it was not directed to tbe body or board whose acts were sought to be questioned and reviewed by it. By sec. 1, cb. 4, of the city charter of Milwaukee (Laws of 1874, cb. 184), it is provided that “ tbe municipal government of the city shall be vested in tbe mayor and common council,” and the common council is a continuing body (sec. 2, cb. 4, of the charter) and has the control of all its records and papers, while the city clerk has the custody thereof and of the corporate seal and is a mere ministerial officer, without any judicial or quasi judicial power. It is a general rule that the writ of certiorari cannot go to a mere ministerial officer, save in exceptional cases, as where the body or board whose acts are sought to be reviewed is not a continuing one, or has ceased to exist, and such ministerial officer has the proper custody of the record or proceeding sought to be reviewed. Such was the case of Milwaukee Iron Co. v. Schubel, 29 Wis. 444, explained in State ex rel. Flint v. Common Council, 42 Wis. 287, 294. The latter was a case identical with this in respect to the direction of the writ, and conclusively shows that in this case the writ should have been directed to the common council, and not to the city clerk. The fact that the writ is directed also to the city as a corporate body will not obviate the objection. The city in its corporate capacity has no judicial or quasi judicial power in the premises, and for that reason the writ should not have been directed to it. The error of directing such a writ to the corporation in street cases was noticed and held fatal in Bogert v. Mayor, 7 Cow. 158; In re Mt. Morris Square, 2 Hill, 14. The authorities are very numerous to the effect that, where the acts of a corporate board or of corporate officers are the proper subject of review by writ of certiorari, the writ must be directed to such board or officers, and not to the corporation. 5 Wait, Pr. 471; Mechem, Pub. Off. §§ 1001, 1007, and cases cited; In re Mt. Morris Square, 2 Hill, 14.

Where the writ has been misdirected, it may be superseded before its return, as well as after. Ball v. Warren, 16 How. Pr. 379; Saratoga & W. R. Co. v. McCoy, 5 How. Pr. 378; Ferguson v. Jones, 12 Wend. 241. And if it has been returned the court may order it quashed or vacated. Tidd, Pr. 403; 5 Wait, Pr. 474, 475. The circuit court properly vacated the writ.

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