State ex rel. Christopher v. City of Portage

By the Court, Paine, J. This was an application for a mandamus to compel the mayor and council of the city of Portage to provide for the assessment, collection and equalization of a special tax upon certain lots. A motion to quash the alternative writ was filed, and the principal objection made upon the argument was, that the ordinance providing [565] for doing the work and letting the contract under which the relator claims, was repugnant to the charter, and That all that part of the ordinance which provided that each lot, or part of lot, should be chargeable with all the work done in front of it, and that owners of corner lots should continue the work to the centers of the intersecting streets, is repugnant to the provisions of the charter on that subject, can admit of no question. The charter evidently requires that when any street, or part of street, is ordered to be graded, and side-walks made, the section so ordered to be improved, shall, for the purposes of taxation, be treated as a whole, and that when the whole amount of tax to be raised for that work is ascertained, it shall be equalized and divided among the various lots chargeable therefor, according to their front or size. This, it is obvious, is an entirely different principle of assessment from that which charges each lot with the entire expense of the improvement in front of it, and serves to avoid much of the inequality and injustice of the latter system. But it is the latter which is provided for in the ordinance under which the relator’s contract was let, and that part of it is, of course, void. But it was strenuously contended [by his counsel, that although this part of the ordinance was void, yet that inasmuch as the council had power to direct the work to be done, and to let the contracts therefor, the ordinance should be considered so far valid, and a mode of payment should be now provided for by the council in pursuance of the provisions of the charter. We have come to the conclusion that this position may be sustained, and that if it is still possible for the council to provide by ordinance for such an assessment and equalization of the tax for the whole work, as the charter contemplates, among the various lots liable therefor, then the ordinance already passed may be held valid, so far as directing the work to be done and the contract to be let is concerned. Whether such an equalization can now be provided for, we confess, seemed to us somewhat doubtful, inasmuch as the ordinance provided that such of the lot owners as chose might do the work in front of their own lots. [566] If a part availed themselves of this privilege and the others not, the ¿djustment and equalization of the tax would be rendered more difficult and complicated. But we are inclined to think that a system might still be adopted through which the object would be attained. It was not necessary for the council to provide in one ordinance for the doing of the work, and also for the manner of payment. If they have attempted it, and the latter provision is void, that need not invalidate the whole, if they have proceeded in such a manner that the provisions of the charter can still be substantially executed. We are also of opinion that under the power to order the improvement of a street, “or part of a street,” the council might order the improvement of one side. That is certainly a part of a street, and the only limitation on their power of subdivision would seem to be the provision requiring the application of two-thirds of the owners of lots on the street, or part of street, to be improved. It was objected that the commissioner’s certificate was void for uncertainty, inasmuch as it states that the work is “chargeable on lots 4, 5, &c., in block 254.” It was said that it did not appear to what the “ &c.’” referred, and that the owners of lots 4 and 5 would not know what portion of the tax they were to pay. But if we have taken a correct view of the effect of the charter, this is entirely immaterial. Eor no part of the amount mentioned in the certificate is as yet chargeable to any particular lot, and it cannot be known what portion is so chargeable until the council have provided for the equalization of the tax, as required by the charter. Eor these reasons we have concluded to overrule the motion to quash, with leave to answer if it is desired.