#### The State ex rel. Gordon, Appellant, vs. McNay and others, imp., Respondents.

*March 9*— April *3, 1895.*

*Ditches and drains: Police power:*Mandamus *to compel town officers t& act: Costs.*

The laying out of ditches under oh. 54, E. S., being an exercise of the-police power, town officers in acting upon a petition for such a ditch do not act on behalf of the town, and the town is not liable for costs in a proceeding by *mandamus*to compel them to act.

Appeal from an order of the circuit court for Pepin county ;■ E. R. BuNoy, Circuit Judge.

*Reversed.*

*Mcmdamus.*The defendants *MoNay,*Ingram, and *Rand*were the supervisors of the town of Waubeek, Pepin county, in February, 1893; and their codefendants, Hoffman and' two others, were at the same time supervisors of the adjoining town of Waterville in said county. On. February 21, 1893, a petition, under the provisions of sec. 1365, S. *&*B. Ann. Stats., was presented in duplicate to the supervisors of both towns, praying for the laying out of a ditch, partly .in each of said towns, for the drainage of overflowed lands in the town of Waubeek. No action was taken on this petition, although the same was sufficient in form and substance, whereupon the relator, Gordon, who was one of the petitioners, commenced this action by suing out an alternative writ of *mandamus,*directed to the supervisors of both towns,, and returnable April 17, 1893.

The relation and writ were served on all the defendants early in April, and on the 4th day of April an entirely new board of supervisors was elected in each of said towns. The respondents, *MoNa/y,*Ingram, and *Rand,*never made return to the writ. Upon the return day of the writ the newly-elected supervisors of the town of Waterville made a return admitting the allegations of the petition, and setting forth the fact of their election and qualification as supervisors on *105the 4th. of April, and that on said last-named date they acted on the petition, in conjunction with the respondents, and fixed the 6th of June as the day upon which they would meet and consider the petition. They also alleged that they had at all times been ready and willing to act upon the petition, but that the respondents had at all times refused to act thereon, until required so to do by the writ. "Upon the filing of this return a further return was ordered by the court to be made by the supervisors of both towns, showing fully their execution' of the writ, which return was directed to be made on the 16th day of October, 1893. This order was served on the newly-elected supervisors of both towns April 25, 1893; and upon the return day a return was made by the supervisors of both towns showing that they had duly acted on the petition in July, 1893, and had decided not to. lay the drain. Upon the filing of this return a judgment, was rendered, reciting the proceedings had and finding, in effect, that the requirements of the law and of the writ had been fully complied with, and that the default in refusing to act upon the petition was the default of the respondents,. *McWay,*Ingram, and *Rand,*and adjudging that the relator recover his costs of said last-named respondents.

At the December, 1893, term of the circuit court of Pierce county, — being a special term for Pepin county,— the respondents, *McNay, Ingram,*and *Rand,*made a motion to vacate the personal judgment for costs so rendered against them, which motion was based on affidavits tending to excuse their failure to act on the original petition. Upon the hearing of this petition an order was made that the said • judgment be amended by inserting after the names of the respondents “the words, £as supervisors of the town of "Waubeek;’ it being the intention of this order to make' such judgment payable by the town of Waubeek, and not. by such supervisors personally.” Prom this order the relator appealed.

*106*Wm. E.*Plwnmer, for the appellant.

For the respondents there was a brief signed by *O. M. Hilliard,*of counsel, and *Ingram dk Kirie,*attorneys, and ■oral argument by *Mr. HillAa/rd.*

WiNslow, J.

The circuit judge states in his opinion that the modification of the judgment was made “so as to make it clear that the judgment is against them [the supervisors] in their official capacity only; thus making the town liable, and not the defendants personally.” It is plain that if the supervisors in acting upon a petition for laying out a ditch under sec. 1365, S. & B. Ann. Stats., act for and on behalf •of the town, then the town is liable for their acts done in good faith. If, on the other hand, the supervisors act simply as governmental officers charged with the execution of a police power, then the town cannot be held liable for their acts. That the laying out of ditches under ch. 54, R. S., is the exercise of a police power, is settled in this state. *Donnelly v. Decker,*58 Wis. 461. That a municipality is not responsible for the acts of its officers while engaged in the exercise of a police power, is equally well settled. *Williams v. Yorkville,*59 Wis. 119, opinion of Lyon, J., .and cases cited therein. It follows that it was error to modify the judgment as was done by the court

*By the*Court.— Order reversed.