State ex rel. Mitchell v. Supervisors of the Town of Decatur

Cassoday, J.

The relator moves to dismiss the appeal upon papers showing facts, the substance of which is stated above. The request for the special town meeting seems to have been signed by the requisite number of qualified voters of the town, and sufficiently specified the purposes for which the meeting was called, within the provisions of sec. 788, R. S. The request was also left with the town clerk in time. The statute requires the town clerk, with whom it was left, to record the same. Sec. 789, R. S. This was done, but it is claimed that it was not done until after the meeting. The statute does not definitely state at what stage of the proceedings the recording must be completed. For the purposes of this case, we assume that it was the duty of the clerk to record the same within a reasonable time after its receipt. But this, after all, would seem to be merely directory, and hence the mere failure to record the same prior to the meeting should not vitiate the action of the meeting, if the calling of it was otherwise regular.

It is urged that the notice did not show that the place where the meeting was held was in the town of Decatur. But it did state that it was made upon the request of voters of that town, and was for the purpose of giving direction to the supervisors of that town. This would seem to be sufficient to indicate that it was to be in the town, and hence *295 it must be assumed that,such voters knew the place where the hall in question was located. The purposes of the notice seem to have been specified with siiflicient particularity, and it seems to have been posted' and published in time. The inspectors of the meeting and the person appointed by them to act as clerk, in the absence of the regular clefk, all seem to have qualified and performed their duties substantially as required by the statutes. Secs. 793-4, R. S. The statute fixed the time of day and manner of opening and closing of the polls. Sec. 796, R. S., as amended by ch. 232, Laws of 1881. The meeting resolved to remain open until .five o’clock P. M., and, nothing appearing to the contrary, we must assume that it was opened and closed at the time and in the manner required by the statute. It is urged that the resolutions submitted contained several propositions, which should have been, voted upon separately,' but there can be no question but what the meeting voted to withdraw the appeal, for that was the form of the ballot cast by nearly all of the voters who voted.

It is urged that the meeting could not control the appeal, and yet at the same time refuse to pay any costs. But the resolution only directed that no costs or attorney’s fees be paid, except such as were legal claims against the town. To the extent of such legal claims the meeting did not attempt to, and probably the town could not, escape liability. It is urged, in effect, that because the bond on this appeal was signed by two of the supervisors in office at the time the mandamus was issued, and who are, therefore, liable for the costs of this appeal, they should be permitted to control it. It is moreover urged, in effect, that the power of laying out highways is given by statute- to the supervisors, and not' to town meetings, and that as the supervisors here were brought into court for the purpose of controlling their official conduct, they should be allowed to control the appeal from the judgment against them; or, at least, that the town *296 meeting should not take the control out of their hands, without first making special provision for the costs which they had incurred. The argument is plausible, but we think it is fallacious. This action was not brought against S. C. Pierce and W. E. Gardner (who signed the bond) as supervisors of the town, but, as authorized by statute, was brought against “ The Supervisors of the Town of JDecatmrP “ This clearly means the supervisors of the town, eo nomme, without use of their personal names.” Cairns v. O'Bleness, 40 Wis., 475 . It was, therefore, the town that appealed, and not Pierce and W. E. Gardner. Had they appealed as individuals, there might have been force in the argument. They may be liable for costs, but if so, only because they signed the bond as sureties. Not having appealed as individuals, are .they still to be allowed to control an appeal in effect taken by the town, and that, too, against the emphatic protest of the town? It seems to us that the party taking the appeal has the right to dismiss the appeal, subject, of course, to such taxable costs as may have been incurred. In the opinion filed herewith in Tuttle v. Town of Weston, 1 we have just held that a town meeting has power to compromise an ordinary claim or suit against the town under subdivisions 1 and 2, sec. 776, E. S.

By the Court.— For these reasons the appeal is dismissed, with the usual taxable costs against the town.

A motion for a rehearing in the case of Tuttle v. Town of Weston was denied January 8, 1884. The case will be reported in 59 Wis. — Rep.