May v. Holdridge

Paine, J. The plaintiff in this action seeks to restrain the sale of certain lots for assessments imposed for street improvements. He probably states in his complaint enough to show that the original assessments were void for non-compliance with the provisions' of the charter in force when the improvements were made. But the complaint also shows that the taxes were [98] re-assessed in pursuance of chapter 483, Laws of 1865, and that the officers are attempting to sell under that act. It is not claimed that the complaint shows any cause of action if that is valid; but the whole argument for the plaintiff is rested upon its alleged invalidity. In Tallman v. Janesville, 17 Wis. 71, and in Cross v. Milwaukee, 19 Wis. 509, this court held that the legislature had power to provide for the re-assessment of a general tax, which was void by reason of non-compliance with the law in its original assessment. And, though the counsel for the plaintiff contends that there is a distinction between a general tax and an assessment for street improvements in this respect, I am unable to see any substantial distinction between them, so far as this question of power is concerned. It is true, as was suggested in Weeks v. Milwaukee, 10 Wis. 242, that the system of street assessments is often the means of imposing more oppressive burdens upon individuals than the system of general taxation. But its validity having been sustained, this consideration cannot have the effect of withdrawing this branch of taxation from the application of those general principles respecting the power of the legislature to provide for the correction of defective proceedings, upon which the decisions above referred to were based. On the contrary, these special assessments for local improvements are to be regarded as one of the constitutional modes of taxing the citizen for the public benefit. And whenever defective proceedings for that purpose have been had, these must present the same basis for the application of the corrective power of the legislature that would be furnished by defective proceedings to assess a general tax. This rule must, of course, be understood with its proper. restrictions. The work for which the tax is sought to be assessed must be of such a character that the legislature is authorized to provide for it by taxation. The method adopted must be one liable to no constitutional objection. It must be [99] sucb as the legislature might originally have authorized, had it seen fit. With these restrictions, where work of this character has been done, I think it competent for the legislature to supply a defect of authority in the original proceedings, to adopt and ratify the improvement, and provide for a re-assessment of the tax to pay for it. This conclusion is supported not only by the decisions of this court, above cited, but also by the following cases: Guildford v. The Supervisors, 13 N. Y. 143, and Brewster et al. v. Syracuse et al., 19 id. 116. Having arrived at this conclusion, there is no other question in the case material to consider. The demurrer was properly sustained. By the Gourt.— The order is affirmed, with costs.