State ex rel. Vanderwall v. Mayor of Phillips

114 N.W. 802, 134 Wis. 437, 1908 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: January 28, 1908
• Status: Published

Opinion

UuRwiN, J.

Giving the record before us the most favorable construction it will bear upon the facts admitted by the demurrer to the return to the writ of mandamus, it shows simply an attempt by the petitioner to’compel the common council to proceed with the performance of its quasi-judicial or legislativa duties respecting the construction of a sewer. This is plain from the alternative writ and return thereto. The question, therefore, is whether mcmdamus will be awarded for such purpose. The duty of providing for and constructing sewers by a municipality is a quasi-judicial or legislative power involving judgment and discretion. Hart v. Neillsville, 125 Wis. 546, 104 N. W. 699; 2 Dillon, Mun. Corp. (4th ed.) § 1046. Such quasi-judicial or legislative duty will not be controlled by mcmdamus. State ex rel. Rudolph v. Hutchinson, ante, p. 283, 114 N. W. 453; Wood, Mandamus, 9; Spelling, Inj. & Extr. Rem. (2d ed.) § 1433. The expediency of entering upon public improvements is left almost entirely to the judgment of the local authorities. 2 Dillon, Mun. Corp. (4th ed.) § 1046; State ex rel. Lord v. Washington Co. 2 Pin. 552; State ex rel. O’Donnell v. Benzenberg, 108 Wis. 435, 84 N. W. 858. In State ex rel. Comstock v. Joint School Dist. 65 Wis. 631, 638, 27 N. W. 829, it is said: “The books abound with cases which assert and enforce the rule that mandamus will not lie to control the exercise of discretion or official judgment” — citing High, Extr. Rem. § § 24, 42, and cases cited; State ex rel. Lord v. Washington Co. 2 Pin. 552; State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Byrne v. Harvey, 11 Wis. 83; State ex rel. Martin v. Doyle, 38 Wis. 92.

We think it clear that no case was made for the issuance of a writ of mandamus, and therefore the demurrer to the return should have been overruled.

By the Court. — The order appealed from is reversed, and the action remanded with instructions to overrule the demurrer to the return and dismiss the writ.