#### State ex rel. Vanderwall, Respondent vs. Mayor and Common Council of the City of Phillips and others, Appellants.

*January 13*

January *28, 1908.*

Mandamus: *Public improvements: Sewers.*

1. The duty of providing for and constructing sewers by a municipality is a guasi-judicial or legislative power involving judgment and discretion, and where the record shows an attempt by *mandamus*to compel the common council of a municipality to proceed with the performance of such duty no case is made for the issuance of the writ.

2. The expediency of entering upon public improvements is left almost entirely to the judgment of the local authorities, and the performance of gwasi-judicial or legislative duties in regard thereto will not be controlled by *mandamus.*

Apeeal from an order of the circuit court for Price county: John E. Parish, Circuit Judge.

*Reversed.*

*Mandamus*against the mayor, common council, and street committee of *Phillips.*The petition sets forth, in effect, that petitioner is a citizen, resident, property owner, and tax*438payer of the city of *Phillips;*that said, city is a city of the fourth class, organized and existing under ch. 40 a, Stats. (189S) ; that by vote duly taken the city dispensed with the board of public works, and their duties devolved upon and are exercised by a committee of the common council known as the street committee; that prior to 1906 said city was divided into sewerage districts and a system of sewerage adopted and partially constructed; that the sewerage system constructed is in use to the north line of the block in which the property of the petitioner is situated; that petitioner is engaged in the erection of a hotel building on lot 5, block 4, fronting on Lake street, which is the principal business street of the city, to be equipped with modern appliances and conveniences for supplying the same with light, heat, water, and drainage; that before commencing said building operations petitioner was assured by all the members of the common council that a petition of the property owners in said block for a sewer would be granted; that relying upon such assurances he has partially completed such hotel building; that he has been delayed and prevented from completing it by reason of water accumulating therein, with no means or facilities for draining the same; that at a regular meeting of the common council held on June 18, 1906, a petition signed by the owners of property in said block 4 fronting on Lake street petitioning for the extension of sewerage along Lake street was presented, whereupon on motion made and carried it was determined to extend sewerage of the city south on Lake street to Maple street in accordance with the prayer of the petition; that the mayor and chairman of the street committee are opposed to such extension, and each of them is giving out that the city has no legal authority to construct said sewer; that the mayor is threatening to institute legal proceedings to restrain the construction of said sewer, and by other unlawful and arbitrary means is doing all in his power to prevent the construction of said sewer; that the street committee has unreasonably *439and negligently refused, and still wilfully, unreasonably, persistently, and negligently refuses, to taire steps to give effect to tbe determination of tbe common council of June 18, 1906, to tbe damage of petitioner and also to tbe citizens of tbe city of Phillips, especially to tbe property owners of block 4. Tbe petitioner,prays tbat sucb proceedings may be bad in due form; tbat peremptory writ of *mandamus*may issue requiring tbe street committee of tbe common council to proceed to give effect to tbe determination of tbe common council of June 18, 1906, in reference to extending and constructing a sewer south on Lake street to Maple street in said city, and for sucb other order as may be proper. TJpon this petition an alternative writ of *mandamus*was issued requiring tbe defendants to give effect to tbe determination of tbe common council of June 18, 1906, in reference to tbe extension of a sewer on Lake street south to Maple street, or show cause to tbe contrary.

Tbe mayor, common council, and street committee made return to tbe writ as follows: ¡'

“Tbat on tbe 2d day of August, 1904, an attempt was made by tbe then city council of tbe city of *Phillips*to install a system of sewerage therein, and when an ordinance as follows appears to have been adopted, to wit:

“ ‘The common council of tbe city of *Phillips*do ordain as follows: Tbat all tbe territory within tbe limits of tbe said city shall hereafter constitute one sewerage district. This ordinance shall take effect and be in force from and after its passage and publication. Dated this 2d day of August, A. D. 1904. Approved by O. O. Kelleher, Mayor. Countersigned by Geo. E. Sackett, City Clerk.’

“That no other or further steps were taken in tbe premises. Tbat no provision has ever been made by said city for tbe payment for the construction of sewers in said city, whether to be paid by tbe city, tbe sewerage district, or abutting property owners. Tbat no plan has ever been prepared by said city, or its board of public works, or street committee, showing tbe lots and parcels of land, tbe main sewers, minor *440sewers, maullóles, catch-basins, and all other matters pertaining to the system, and as provided for and required by see. 925 — 209 of subch. XX of ch. 40a of Wisconsin Statutes of 1898, and that no notice has ever been given of the completion of any such plan as required by sec. 925 — 210 of said chapter, and no such plan has ever been adopted by said city. That so far as records of said city show and so far as we are advised and know, except as hereinafter particularly set forth, the foregoing record comprises all that has been done by said city, its council, or street committee in installing or establishing a sewerage system therein. That in the month of June, 1905, as we are informed and believe, the city council, in conjunction with the .board of education of said city, caused a certain plan and profile to be made of a sewer to extend from the school building in block 14, in said city, to a point on Lake street to connect with a certain sewer therein laid. That on the 1st day of August, 1905, the said city council passed the following ordinance, to wit:

*“ ‘Ordinance.*

i{The common council of the city of *Phillips*do ordain as follows: That the plan ior the proposed extension of the sewerage system of the said city as shown by the certain plat of a sewer to be constructed from the southeasterly basement wall of the high school building diagonally to the intersection of the said line with the center line of Chestnut street and from thence along the said center line of Chestnut street to the center line of Lake street, all in the said city, and by the profile map of the same hereto attached and submitted to the said council at its regular meeting held on the day of the date hereof, together with a report of the street committee of the said city, in relation thereto, is hereby approved, adopted, and established, and the city clerk of the city is hereby directed to file such plat and profiles as provided by law. This ordinance should take effect and be in force from and after its passage and publication. Dated this 1st day of August, A. D. 1905. Approved by C. C. Kelleher, Mayor. Countersigned by Geo. E. Saclcett, City Clerk.’

“That said plan of sewer was never submitted tc« the owners of or those interested in the real estate in said city and af-*441feeted by said plan by wbicb proper objections could be made or filed and as required by sec. 925 — 210, aforesaid. That no provision was made for tbe payment of said sewerage, excepting only as appears by tbe certificate of tbe then common council of said city appended to tbe contract made between tbe said city and one J. E. Dickman that there were sufficient funds ‘in tbe treasury of tbe city to meet all sueb expenses as tbe city may incur for tbe materials and work therein provided for,’ but that, as tbe fact is, tbe said board of education paid $1,000 of the contract price of said sewer, tbe city of *Phillips*paying only tbe balance thereof, to wit, tbe sum of $1,253.95. That tbe notice for bids for tbe construction for said sewer was given jointly by street committee and board of education of said city of *Phillips.*

“We further beg leave to show that no plan for any sewerage district has ever been finally determined and no completed diagram of tbe same has ever been prepared in duplicate or otherwise, certified to be correct by the board of public works or street committee, and filed as required by sec. 925— 212 of said subcb. NX, as aforesaid. We further represent and allege that in tbe acceptance so called of tbe petition of tbe relator herein tbe council were not advised in the premises, and that tbe whole matter was referred to tbe city attorney for bis advice as to tbe exact status of tbe city with reference to sewerage, and especially as to who should be legally chargeable with the cost of sewer prayed for in said petition. That before any report was made by said city attorney this proceeding was instituted. We further represent and show that no tax has been raised and no funds are now in tbe treasury of said city for tbe construction of sewers therein nor any moneys set aside and appropriated for such purposes. That by reason of tbe premises, and as we have been advised, we have no power to proceed in tbe immediate preparation of plans for or tbe construction of any sewer in said city at this time. All of wbicb is respectfully submitted. Wherefore we respectfully pray tbe judgment of tbe court that tbe petition be dismissed and the rule to show cause why a peremptory writ should not issue be discharged, and for such other rule, order, or relief as may be proper in tbe premises, and for costs.”

*442Tte petitioner demurred to the return for want of facts sufficient to constitute a defense and that the return does not show any cause or excuse for not obeying the writ. The court sustained the demurrer, with permission to amend the return on payment of $10 costs. Erom the order sustaining the demurrer this appeal was taken.

The cause was submitted for the appellants on the brief of *Barry & Barry,*and for the respondent on that of *Schweppe & TJrquhcurt.*

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.*
      *443
      *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.