Fletcher v. City of Oshkosh

By the Oourt, PAINE, J. We do not feel called upon to review the elaborate argument of the appellant’s counsel, in respect to what would have been the liability of the city, upon the facts presented, in.the absence of any special provision in its charter. For, conceding all that the appellant claims, the special provision that does exist renders it all inapplicable. That provision is that, “ in no event, where work is ordered to be done at the expense of any lot or parcel of land, shall either the city or any ward be held responsible for the payment thereof.” Now, in the face of this provision, which says that the city shall in no event be liable, we are asked to hold that if the money is not collected in a reasonable time, in the mode which is provided, the city shall be liable. We are ask [232] ed to say that it shall be liable not only where [it neglects to assess the amount as a tax and cause it to be inserted in the next assessment roll, but also after it has done both these— has done all that it could do — if the treasurer fails to perform the duty which the law imposes on him. We know of no rule of construction, and certainly the counsel cited no case, that could justify a court in thus overriding a plain provision of law. Whoever contracts for this kind of work, or deals in these certificates under such a charter, takes the risk of collecting his money in the manner provided, with a right to resort to the appropriate remedy to compel the officers to whom it is entrusted to discharge their duties, and he cannot come into a court and ask to hold the city liable, in the teeth of a provision which informed him at the outset that the city should in no event be liable. The order sustaining the demurrer is affirmed, with costs.