Dean v. Borchsenius

Dixon, O. J. This is one of the never-ending Madison Nicholson pavement cases, a litigation which bids fair to long outlast the being and usefulness of the pavement itself, which has been the unfortunate source of it. The case comes up on demurrer to the complaint, which was sustained in the court below, and from which the plaintiff appeals. The action springs in part from the same state of facts presented in Dean v. Charlton, 23 Wis., 590, and a sufficient history of the past litigation and of the decisions of this court made in it, will be obtained from a reading of that case and of the still more recent one of Mills v. Charlton, 29 Wis., decided at the last term of this court. The property known as the King street property, or parts of lots 1 and 2 in block 104, is that in controversy in Dean v. Charlton, whilst the property on Pinckney street, described as lot 8, block 101, was at the same time (in 1868) the subject of a separate suit, not brought to this court by appeal, but which by stipulation was to abide the result of the suit which was appealed. Both pieces of property, or the taxes assessed against them are included in this action, which is instituted to restrain the county clerk from executing and delivering tax deeds in pursuance of sales of the lots, made on the 10th day of May, 1870, by the county treasurer of the county of Dane. The sales so made were in pursuance of a re-assessment and re-levy of the taxes to pay for the pavement, made by the common council of the city of Madison in the months of September and November, 1869, under special authority for that purpose, conferred by the act of the legislature, approved March 9, 1869, being chapter 316, Pr. and Local Laws, 1869. The proceedings for the re-assessment and re-levy of the taxes, the return to. the — 240 — county treasurer, and the sales and issuing of the certificates by him, are particularly stated in the complaint, and the resolutions of the common council, together with the pleadings, findings and judgments in the former suits, are set forth in hcec verba, or nearly so. It appears from the statements so made and admitted by the demurrer, that the taxes assessed in the aggregate were made up of items for different parts of the work described in the proceedings, as follows: that is, the grading, the sand filling, the paving (which included the furnishing of the materials and laying down of the pavement), and the curbing. Separate assessments for these different kinds of work, except the curbing, were made against the King street property, and the like assessments were made upon the property on Pinckney street, except that in the assessment for the paving, there was included also a tax of $15.84 for curbing done in front of that lot. It appears from the proceedings originally taken by the common council in ordering the pavement, that the streets were to be graded to the established grade, and to be paved with the wooden block pavement, known as the “ Nicholson pavement,” and to be properly curbed according to the plans and specifications furnished by the city surveyor, and in the advertisement for bids, signed by the mayor, it was specified that the whole was to be curbed at the sidewalk line with curbstone curbing, five inches thick and of the requisite depth; that bids for grading, paving and curbing might be received separately, and that each must be accompanied by a guaranty signed by two sureties, who should justify their responsibility on oath,” etc. It also appears that bids were received and accepted, and contracts let separately to different persons for the grading, the sand filling, and the paving. It does not appear that 'any bid for curbing was ever made, or any contract let. It does not appear that any curbing was, in fact, done in front of the King street property, or. at least that any tax or assessment for that purpose was levied or made. In the certificate made and — 241 — issued to Burnham & Harrison, who were the' paving contractors, and laid the pavement, certifying that they had laid it in front of the lot on Pinckney street, and that the same was thereby accepted and approved, was- also a further statement; that they “ had furnished and made in front of said- lot eight, two hundred and • sixty-four- feet of lineal curbing, at sixty cents per foot.” Burnham & Harrison made no bid- for the curbing, but only for the paving,, and the work of- curbing was not mentioned in their contract: The bid of Burnham & Harrison for' the paving'was $3 per square yard, or $2.50 in cash, payable as- soon as laid.- The contract entered into by the city with them was $3 per yard, chargeable to the lots fronting on the improvement, and to be paid by special assessment on those lots, andjnot otherwise, but for work done at the expense of the city, and to be paid for in cash out of the treasury, $2.50 per-yard was-the-price agreed. The contract did not, in accordance with the terms of the bid, reserve to lot owners the right to pay $2.50 per: yard in cash as soon as the pavement- was laid and accepted. The resolutions of'the common council, passed- in pursuance of the authority conferred, or supposed to be, by the aot- of 1869, are three in number, and refer to the work according to the above classification of “ the paving',” “the sand filling,” and “the grading,” and each by itself adopts, as a valuable improvement, one particular kind of the work, and authorizes and directs a reassessment of the special taxes to pay- for it, namely, the first resolution, the paving; the second; the sand filling; and the third, the grading. “ The' curbing” is not mentioned in any resolution, and no re-assessment for that-'appears to have been authorized or directed. The contract for the grading' was let to • one' Collins, for' the sum of thirty-nine cents per cubic yard,- upon a bid received from him at that price. The complaint alleges that' “ the bid of said Collins so as aforesaid accepted, vtas not' the’ lowest and be'st bid for doing said grading, but that'á-bid-was made and — 242 — put in to do said grading at tbe rate of thirty-two cents per cubic yard.” It appears that tbe bid of Collins was regular in form, and accompanied by tbe requisite guaranty, signed by two sureties, as prescribed by resolution of tbe common council, and authorized by law. Laws of 1865, ch. 526, sec. 3. It will be observed tbat tbe other bid alleged “upon information and belief ” to have been put in at tbirty-two cents per cubic yard, is not averred to have been regular in form, or to have been guarantied by sureties in tbe mode required. Tbe contract to furnish and deliver the sand, necessary for the bedding of the pavement, was awarded to one Gill for the sum of eighty-five cents per cubic yard, tbat being the amount of bis bid, but the complaint avers “ tbat no notice of proposals for furnishing sand for Nicholson pavement was made and published in any manner or form whatever, prior to the time of receiving and opening said bid, and tbat no contract was, in fact, made with said Gill for doing said work, further than by the acceptance of bis bid as aforesaid.” Tbe charter of the city, at tbat time required all work of the kind to be let to the lowest bidder, after publication of notice for at least the period of ten days in the official paper of the city. Such, in brief, are tbe leading and most material facts, necessary to a proper understanding of tbe questions of law, presented in this case. Tbe complaint appears, also, to have been drawn with a view to contesting the constitutionality of the act of 1869, under which the re-assessments were made, and also the power of the legislature to authorize re-assessments in cases where proceedings for tbat purpose have been enjoined and the same declared invalid by the final judgment of a court of competent juris diction. These questions, save one which will hereafter be noticed, were adjudged adversely to the plaintiff in Mills v. Charlton, supra, and Evans v. Sharp, 29 Wis., and further remark upon them is unnecessary. The first point made by the counsel for the plaintiff, is that — 243 — the act of 1869, did not in terms nor by necessary or fair implication, or construction, authorize the re-assessment of the taxes for the sand filling, and that so far the proceedings of the common council are void. In support of this position, counsel inyoke the rule stated in Dean v. Charlton, 27 Wis., 522, that acts of this nature are in derogation of the rights of the citizen, and should be strictly construed. The first section of- the act authorizes the common council to re-assess and re-leyy the amount “ in cases where the tax, assessment or assessments for grading or paving the streets or alleys of said city, either with the payement known as the ‘ Nicholson pavement,’ have heretofore been set aside or declared void by any court,” etc. The last half of the second section is much to the same effect, except that in addition it declares that “the ordinance heretofore passed directing and requiring the grading and paving of certain streets in said city with the ‘ Nicholson pavement,’ is hereby legalized and the contracts therefor confirmed, and the tax and assessment therefor is hereby declared valid,” and then follow words authorizing and empowering the common council to reassess said taxes and assessments, substantially as in -the first section. The question as to what effect, if any, can be given to the provision declaring the contracts, tax and assessment valid without a re-assessment or re-levy by the common council, and even though the same bad not been declared void by the judgment of a court of competent jurisdiction, is still an open one in this court. That question does not arise here, since it is only by virtue of the re-assessments by the common council that any rights on the part of the city or third persons are claimed, and the question is whether those re-assessments were authorized by the act within the rule of construction above referred to. It is obvious to our minds, that when the legislature spoke of paving the streets and alleys with the Nicholson pavement, or of “ grading or paving,” in the disjunctive as in the first section, or of “ grading and paving” as in the second section, that the whole work of improving the streets by that kind of pavement — 244 — was intended. This is in accordance -with, the view of the conrt in Dean v. Charlton, 23 Wis., 609, where it was said that “the grading, althongh let by a separate contract, was merely accessory to the principal contract for paving the street.” The same is as true of the sand-filling as of the grading. “ It was to prepare the street for the pavement ” and was accessory to and constituted a necessary part of the work of -laying the pavement. When, therefore, we speak of paving a street with Nicholson pavement, or of'grading it and paving it with such a pavement, we mean all the different kinds of work necessary to the production or laying down of a pavement of that description.- The words would be so- understood according to the- common and approved usage of the language, and such must be their construction when found in a statute, unless the use in a different sense is clearly manifested. 1 Tay. Sts., 180, § 1, subd. 1. Such being the natural and obvious import of the language employed, the question is whether it can be turned to a different intent, or so as to defeat the purpose of the legislature, by an application of the doctrine of strict construction. We think not. The rule means no more than this, that in construing such laws, all reasonable doubts as to the intent of the legislature, should be resolved in favor of the citizen, and that the laws should only have such effect as the legislature clearly intended to give them. Such is the language of the opinion in Dean v. Charlton first referred to, and it was never intended to assert that the rule should have any other or different application. We hold, therefore, that the act authorized the re-assesment of the sand-filling tax. It is said that the act violates the provisions of section 3, article XII of the constitution, which makes it the “ duty of the legislature in providing for the organization of cities and incorporated villages, to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit; so as to- prevent abuses in assessments and taxation, and in contracting debts by such municipal corporations.” This is — 245 — not the first time this objection has been urged before - us in cases of this Mnd, and we have given it considerable study and attention. It is easy for the legislature to impose restrictions where money is to be borrowed, debts contracted, or credit loaned, and to such cases this court has held the provision of the constitution applicable. Foster v. Kenosha, 12 Wis., 616. Fisk v. Kenosha, 26 Wis., 23. But it is not easy to see how the legislature may do the same thing with respect to street improvements, such as the grading and paving of streets and construction of sidewalks and gutters, in all our numerous cities and villages, a duty the intelligent and proper performance of which would require direct legislative examination and forethought as to the condition and requirements of each particular street in every city and incorporated village throughout the state. It is manifest that what would be a suitable and necessary improvement and reasonable expenditure of money upon one street of a city or village, might not be so upon another or other streets of the same city or village, but would be an abuse of the power of assessment and taxation. A restriction upon the power regulated by a percentage of assessment or taxation upon the value of property fronting on all the streets of a village or city would, therefore, fail to accomplish the purpose. Abuses of the most serious character, if the local authorities were so disposed, might still intervene, for under that system what would be a proper expenditure of money on one street, might be a most improper, unjust and oppressive one on another, and the evil would still be unchecked. A Nicholson or other expensive pavement might be required on a business street and not required on a street occupied with valuable and costly residences, and yet the valuation of the property might be the same on both streets. To impose any wholesome and effective restraint and prevent abuses, therefore, in case that was the intention of the constitution with respect to assessments of this description, it would become necessary for the legislature to examine and discriminate as to the character and expense of the — 246 — improvements to be made upon the different streets in the numerous cities and villages everywhere in the state. Did the framers of the constitution intend by the clause in question to impose any such onerous and almost impossible duty upon the legislature? We are constrained to think that such was not the intention, or if by possibility it might have been, that it is too late now so to construe and apply the language. It would be a most astonishing declaration to come from this court at the present day, that we have not now and never have had from the beginning of the government, a single valid and constitutional city or village charter or organization within the state, and yet such would be the effect of holding the proposition contended for by counsel. Every city and village charter passed since the foundation of the state, a period of nearly twenty-five years, during which all of our cities and villages have grown up and been organized, and every act done under such charters in respect of the improvement of streets, must inevitably fall and be adjudged unconstitutional and void. If such had been the intention of the constitution, it should have been thought of before these re-assessment cases came up, and the fact that it never was so thought of, is very strong evidence it was not the intention. The uninterrupted practice of a government prevailing through a long series of years, and the acquiescence of all its departments, legislative, executive and judicial, sometimes become imperative even on constitutional questions. If ever there were such a case, this would seem to‘be one, and the objection of counsel must be overruled. Another objection is that the grading tax was fraudulent in the first instance, because the contract for doing that part of the work was not let to the lowest bidder. It is insisted that a tax wrong in substance and in principle, — inherently unjust and vicious, cannot be legalized or made valid as a whole, or without correction, by subsequent legislative enactment. The correctness of this proposition will not be disputed, and nothing in conflict with it has ever been asserted or maintained by this — 247 — court. A tax levied in contravention of the constitutional rule of uniformity, whether by authority of á previously supposed law or without, could not be legalized by subsequent act of the legislature. A tax fraudulently and corruptly laid, and unjust and partial in its operation against the provisions of existing laws, could not be so validated, or aided or made effectual by subsequent re-assessment. This court has never asserted any different .doctrine. All that has been affirmed is that the legis-' lature may ratify and cure through re-assessment by the local authorities, that which it might have constitutionally and lawfully authorized in the first instance. Whatever in the form and mode of proceedings not going to the groundwork and justice of the tax which has failed, the legislature might have dispensed with in the first instance, the same dispensation may be granted afterwards. It may dispense with the giving of a notice where that was made necessary, or with the exposing of work to competition by receiving bids and awarding it to the lowest bidder, where that was required, or with other like informalities' in the proceedings to make an assessment or levy a tax. These things, though in general very expedient and wise, cannot be said to be essential to an exercise of the taxing power. It may be constitutionally exercised without them, and hence they may, in the discretion of the legislature, be dispensed with. An assessment made to pay for a pavement laid by contract with the municipal authorities, without receiving bids, that being the mode authorized by statute, would undoubtedly be valid. No one, we think, will question this proposition, or insist that the legislature must in the first instance, require biddings or cause notices to be published or given. If this be so, then the conclusion necessarily follows that the legislature may, upon the same state of facts, and where in its judgment the public interests and ends of justice require, ratify and confirm past proceedings defectively taken, and authorize a future assessment to pay for such pavement. Such, in short, are and ever have been the views taken by this — 248 — court, of tbis most important question. But to return to tbe point bere urged, that tbe contract for doing tbe grading was fraudulently let. Tbis does not appear from tbe pleadings, tbe allegations of wbicb, with regard to that contract, are above quoted. It is not averred that tbe bid at tbe rate of thirty-two cents per cubic yard was in proper form, or that it was-accompanied by the requisite guaranty, with sureties. Sufficient facts are -not ntated to show that it was a valid bid, and there is not even a general averment -that it was so. Fraud or corruption in rejecting it and receiving tbe other are not charged. Tbe demurrer admits only such facts as are well pleaded, and for all that appears it may have been such a bid as tbe common council were not authorized to receive or were bound to reject. A still further answer to tbe same-objection may perhaps be found in tbe finding and -judgment of tbe court in tbe former suit, set out -in the present complaint, from wbicb it appears that it was there determined that the bid upon wbicb tbe contract was awarded, was tbe lowest bid received by tbe common council for tbe grading. Tbis may be and probably is res adju-dkata and conclusive against tbe plaintiff in tbe present and all future actions. * Tbe objection that tbe sand-filling tax could not be rectified or re-assessed because the contract for that purpose -was let without publication of notice and without receiving bids in tbe manner prescribed by the charter, is answered by tbe remarks wbicb have already been made. It was .competent for-the legislature to ratify and for the common .council, in pursuance of tbe authority so giyen, to re-assess that tax. ■ No charge of fraud is made or that the contract was corruptly let, and doubtless none could be proved. We come now to an objection upon wbicb we think tbe plaintiff must prevail, .and that is as to tbe invalidity of the curbing tax. It will be -seen, from tbe statement of facts, that no contract was ever let for doing tbe curbing, and that tbe amount therefor was -illegally included in tbe .certificate for -pay — 249 — ing done by Burnham & Harrison. It will also be seen that, whether authorized or not by the act of 1869, no re-assessment for curbing was ever made or ordered'by the common council. The curbing tax, therefore, amounting to $15.84, included in the sale of the Pinckney street property, lot 8, block 101, is an illegal excess, and avoids that sale and the certificate issued to the purchaser. As to the King street properly, no objection to the tax is shown, and the sale must stand unless the complaint should be amended and further facts shown. The demurrer, however, being to the whole complaint, that it states no cause of action, should have been overruled. A good cause of action is stated as to lot 8, block 101. Upon the facts alleged, the plaintiff is entitled to an injunction restraining the issuing of a deed upon the certificate of sale of that lot, on payment by him of the taxes legally assessed thereon, with interest at seven per cent, from the first day of January, 1870, that being the time from which delinquent land taxes draw interest by general law. An objection omitted in its order, and which should be noticed, is upon the failure of the common council in the contract with Burnham and Harrison for the paving, to reserve to lot-owners the right to pay for the same in cash at $2.50 per square yard, according to the terms made with the city and contained in the proposal of the contractors. The results of this litigation demonstrate the propriety of the discrimination made by the contractors between a cash payment and a payment to be realized by an assessment and sale of the property to be charged with the expense. No good business man would probably have done otherwise than Burnham and Harrison did, and we see no impropriety in the common council having accepted the proposal as made. It was, doubtless, a well known fact, that collection of the taxes would be resisted and that litigation, delay and expense would follow, the results of which were uncertain. It was proper, therefore, for the common council to sanction the discrimination, but it should no doubt at the same time have given lot-owners the option to pay $2.50 — 250 — in casb, as authorized by the proposal. This was a mistake or oversight, of which injured parties might take advantage. Had it appeared that the plaintiff in this action had tendered or offered to pay the $2.50 cash at the completion of the contract, and it had been refused, just ground of complaint and for legal or equitable redress would no doubt have been shown. As the case is now presented, however, he has suffered nothing from the mistake, and we think he is in no position to complain or take advantage of it. By the Court. — Order reversed and cause remanded for further proceedings according to law. '