State ex rel. Clancy v. McGovern

It is quite apparent from the record that the main ground upon which the relators relied to support their claim that the highway in question was never legally vacated was the fact that the village of South Milwaukee had been incorporated by order of the circuit court under the provisions of secs. 854-866, S. & B. Ann. Stats., which provisions were pronounced unconstitutional by this court in the case of In re North Milwaukee, 93 Wis. 616, because they attempted to delegate legislative power to the circuit courts. Since that decision, the legislature, by ch. 5, Laws of 1897, has passed an act legalizing the incorporation of all such defectively incorporated villages, and attempting to legalize, ratify, and confirm all the corporate acts of such villages and their officers. The legislature having the exclusive power to create such corporations in the first instance, it is difficult to see why it may not validate defectively incorporated villages, and the acts of their officers, when no vested right is interfered with. Single v. Marathon Co. 38 Wis. 363.

There arises, however, at the threshold of this case, an objection which necessitates affirmance of the order quashing the writ, regardless of all questions upon the merits. The action was brought to review the alleged illegal acts of the village board of trustees, and the writ should have been di*670reeled to, and served upon, the board whose acts are attacked, and not upon the clerk. This doctrine has been held in a series of decisions in this court. State ex rel. Ollinger v. Manitowoc, 92 Wis. 546, and cases cited. In this case it was said : “ If misdirected, the writ must be superseded or quashed. The court acquires no jurisdiction by it.” In State ex rel. Tibbits v. Milwaukee, 86 Wis. 376, where a writ of eerbiorm'i seeking to review acts of the common council had been directed to the city of Milwaukee and to the city clerk, it was-said that the court could not review the proceedings of the council, because the writ was not directed to the body or board whose acts were sought to be reviewed by it; and, further, that the writ 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 proper custody of the record or proceeding.” So, in the present case,, it appearing by the relation that the proceedings of a village board are sought to be reviewed, it must further appear that such village board has ceased to exist, in order to justify the issuance of a writ to the clerk of the board. Not only is there no allegation of this kind, but the writ is directed to Me Govern as “village clerk of the village of South Milwaukee, in the county of Milwaukee,” thus unequivocally recognizing the existence of the Milage organization at that time. Furthermore, the respondent states in his return under oath that since the service of the writ the said village of South Milwaukee has duly organized as a city, and that the village no longer has any existence. Thus it affirmatively appears, both by the relation and by the return, that the village existed when the action was commenced, and, presumptively, that a village board then existed. If such was the fact, then under the rules laid down in the cases above cited the court, acquired no power or jurisdiction to review the proceedings. of the board by the issuance of a writ to the clerk.

*671It may be urged that the clerk has waived this objection by making a motion to quash, based in part upon the ground that before service of the writ the village of South Milwaukee had ceased to exist; but, as the question is one of jurisdiction of the subject matter, such jurisdiction cannot be conferred, nor the absence of it waived, even by consent of the clerk. The existence of the village organization appears by the relation, the writ, and by the return, and this must be held to be conclusive of the fact. The motion to quash is based upon the record and the facts therein shown. It is no part of its office either to add to or subtract from those facts. It is, in effect, a demurrer questioning the legal sufficiency of the facts appearing in the record, and can go no further. State ex rel. Anderson v. Timme, 70 Wis. 627.

It was argued that the motion to quash was made too late, but this contention is directly ruled against in State ex rel. Cameron v. Roberts, 87 Wis. 292.

We conclude that the writ was properly quashed on the ground stated, if upon no other ground.

By the Court.— Order affirmed.