Soens v. City of Racine

By the Court, Dixon, C. J. The point principally relied upon in argument by the respondent’s counsel to sustain the — 275 — judgment of the circuit court, namely, that the assessments complained of violate the first section of the seventh article of the constitution, has been already disposed of by the decision in the cases of Lumsden vs. The City of Milwaukee, 8 Wis., 485; and Weeks vs. The City of Milwaukee et al., made at the present term of this court, supra, 242. The remaining points will be disposed of in the order in which they are made by the respondent’s counsel. 1. It is said that the report of the five jurors was illegal and did not authorize the city counsel to make the assessment. The 9th section of chap. 134, Laws of 1852, entitled “an act to amend an act to incorporate the city of Racine, &c., provided among other things, “that the city council should have power to authorize the construction of suitable piers, break waters, and such other protections as might be planned or devised for the purpose of securing the lake shore within the bounds of said city, from the encroachments of the waters of lake Michigan, and to levy a tax in the manner thereinafter specified, upon the lots and ward or wards benefitted or rendered more valuable thereby;” but that no such improvement should be authorized by the city counsel until a plan of the same should have been submitted in writing, and a careful estimate of the cost made; and that the same when authorized, should be let to the lowest bidder or bidders, reasonable notice having been first given of the time and place of receiving bids, and that the contract price should be the maximum to be raised, as thereinafter provided for. By the 10th section it was provided “ that as soon as the contract price of any such improvement should be ascertained, the council should select a jury of six freeholders in like manner as they were then selected, to appraise the damage' on opening streets, and in no way interested in said improvements, or the lots and ward or wards benefitted thereby, whose duty it should be faithfully and impartially to assess the costs of said im — 276 — provements upon the lots and ward or wards benefitted either immediately or in prospect, assessing such proportion upon the ward or wards as shall be just and equitable, and the remainder upon the lots benefitted thereby, having proper refer-erence to the present protections and situation of said lots, and the amount of benefit each received therefrom ; and that such jury should make return to the city council in like manner as was then provided for making returns for appraisal of opening streets.” It is apparent from these provisions, that the proceeding was in no respect like a common law trial by jury. The return was unlike a verdict . It was a special proceeding in the nature of a commission, and the persons empowered to execute it, though called jurors, were really, by the nature of the duties imposed, commissioners. By the agreed case it appears that all the requirements of these two sections were complied with by the city council up to and including the selection of the jury, and that the jurors all acted in discharge of the duties imposed upon them, and performed every thing required, except that the return of the assessment was signed by onlyfive instead of the whole number of jurors. It is a rule of law too well settled to admit of doubt or dispute, that where there is a delegation of power for a purpose merely private, that all the persons to whom the execution of such power is committed, must concur in the act to be done, to make such execution valid and effectual, unless it is otherwise provided by the parties. .Such is the case with arbitrators, trustees, &c., appointed by the act of the parties interested. On the other hand, it is equally well settled, that where the powers entrusted are matters of public concern, then the voice of the majority shall govern, and their act is the act of the whole. Co. Lit., 181; Grindley vs. Barker, 1 Bos. & Pul., 236; Green vs. Miller, 6 J. R., 39; Young vs. Buckingham, 6 Ohio, 485. — 277 — In Gridley vs. Barker, Eyre, C. J., says : “ It is now pretty well established that where a number of persons are entrusted with power, not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole.” Our statutes, of 1849, chap. 4, subdivision 3 of sec. 1, seemed to go further and make the execution of a majority, when acting alone in cases where a joint authority is given to three or more officers or other persons, legal and binding, unless it shall be otherwise expressly declared in the law giving the authority. 2. The second point made is, that the assessment is void because the question of incurring the liability was not submitted to the voters of the city pursuant to the 4th section of the act above referred to. To make this objection intelligible, it is necessary to state briefly the provisions of the three preceding sections. The first section provided that the mayor and city council should not levy a tax on the city in any one' year, for current city expenses, exceeding five thousand dollars. The second section, that the mayor and council should levy a tax in addition to the current city expenses, sufficient to pay the then indebtedness of the city, as the same should become due and payable, and also a tax on the several wards sufficient to pay their respective indebtedness. The third, that there should be no other tax levied upon said city, or the several wards thereof, for city or ward purposes, except the poll tax, unless specially authorized by a vote of the property tax payers, as thereinafter provided. The fourth section provided that, on the written petition of fifty freeholders of the city, asking for an appropriation, stating the amount, for any specified object, not coming within the current, ordinary expenses of the city, it should be the duty of the mayor and council to call a special election of the property tax payers of the city, to vote upon such appropriation; and — 278 — if a majority of thpse voting on said question, should vote in favor of it, the city council should make the appropriation and levy the tax to pay it, hut the money should be appropriated to no other purpose except that specified in the original petition of the freeholders; that no more than one such proposition should he submitted at any one election, and that any surplus money remaining over and above completing said specified object, should be carried to the credit of the fund for current city expenses, and should lessen the amount to be raised for that purpose in the next ensuing year to an amount equal to said surplus. The case shows that before the city council authorized the erection of the piers, breakwater and protections described in the complaint, a petition therefor was signed by fifty freeholders, and presented to the council, but that no vote of the property tax payers was taken. We are of opinion that the making and presentation of the petition was wholly uncalled for, and that the provisions of section four were entirely inapplicable to such a proceeding. It is very evident, from the tenor of sections three and four, that their provisions are applicable to proceedings for levying taxes, above the sum of five thousand dollars, specified in the first section, for general city and ward purposes, and not to special assessments authorized by the 9th and 10 sections. Such general purposes would include the erection of public buildings for the accommodation of the inhabitants, such as a city hall, and market houses for the sale of provisions, the providing of the city with the necessary and usual implements for the extinguishment of fire, and other kindred objects, of general importance and necessity to the public. This is manifest from the last clause of the fourth section, which provides that after the specific object of these appropriations is obtained, the surplus, if any, should be carried to the credit of the fund for current city expenses, and lessen the amount of taxes to be raised for that — 279 — purpose the ensuing year. This provision, if held applicable to a proceeding like the present, would be obviously oppressive and unjust as to those persons whose property is assessed to pay for the improvements. This view is corroborated by the provisions of the 11th section, which declared that whenever the assessment provided for in the 9th and 10th sections should be completed and filed with the city treasurer, the same should become a lien upon the lots, from the time of filing the same, and directed the manner of collection. These three sections, taken together, seem to form a complete system of proceeding, in reference to the subjects to which they relate. 3. The only remaining point deemed necessary to be noticed is, that the assessment is void, “ because it is the appropriation of private property for public or private use, without compensation.” That such an assessment is not an appropriation of private property for public use, within the provisions of our constitution, we think too well settled by adjudications in other states, upon like provisions, to admit of discussion. It is an exercise of the taxing power, and not an appropriation of specific private property for public use. The printed brief seems to indicate a doubt in the mind of the counsel whether the object to be attained was of a public or private nature. On the argument it was insisted that it was purely a private enterprise. It was upon this ground that the circuit judge sustained the action,'and directed a decree perpetually restraining the collection of the taxes. If this position is correct, the whole proceeding must fall. The legislature are not authorized to provide for the levying of taxes for merely private or individual ends. Such taxation would be entirely subversive of the objects of government, and ought not to be tolerated. Legislative authority is not delegated for any such purpose, and the taxing power can only be exercised for the accomplishment of some object of public or com — 280 — mon interest No authorities were cited to show that it was taxation for merely private purposes. If the legislature may by act authorize the common council of a city, at the public expense, to provide for the organization of fire departments, and supply them with proper engines and machinery, to prevent the destruction of buildings by fire, it is difficult to perceive why it may not, on the same principle, authorize the'levy and collection of taxes, for the purpose of staying the destruction of the site of the city itself, when, from natural causes, such as a change in the current of a stream, or the action of the waters of a lake, it is in danger, of being undermined or swept away. If the loss of buildings and perishable things be regarded as a public calamity, worthy and proper to be guarded against at the public expense, is not the loss of both buildings and the soil on which they stand, a greater calamity, and more worthy of public protection ? There is hardly a city in the state in which there are not fire departments organized and supported, to a greater or less extent, at the expense of the public; yet we never heard it objected that they are mere private enterprizes, not authorized by law. The circuit judge, in his opinion, says : “ The tax is levied for the protection of private property, and for an object in which the public have really rio interest.” If this be so, does not the argument apply with much more force to all public and statutory regulations for preventing accidents and losses of the former character ? The objects of protection in that case are all private property. No city has perishable property of its own to warrant these expenditures. Many have none. The object is to defend and save private property. In the present case, however, in addition to the private injuries to be prevented, the public had a direct interest in the preservation of its streets and grounds. That private property may be either directly or indirectly protected, or private interests promoted by a given improvement, furnishes281 no sound rule for deciding that it is not public. Public and individual interests are often so intimately connected and blended together, that it is impossible to advance the one without at the same time advancing the other. There is no public good without at the same time a private benefit. They are inseperable; the former cannot exist without the latter. If the latter be not promoted, it proves that it is not a public good. That which affects the interests of an entire community must, to a greater or less degree, affect the interests of each member of it. To determine whether a matter is of public or merely private concern, we have not to determine whether or not the interests of some individuals will be directly promoted, but whether those of the whole or the greater part of the community wilffbe so. That such was the character of the improvements provided for by the act, there can be little doubt. The entire city was interested in staying the further progress of destruction caused by the action of the waters of the lake." The judgment of the circuit court must be reversed, and the cause remanded for further proceedings, in accordance with this opinion.