Zwietusch v. City of Milwaukee

Lyon, J. The action is essentially one to recover of the city of Milwaukee the expense of grading the alley in front of lot eight, together with the expenditures incident to the plaintiff’s efforts to enforce payment of the amount of his grading certificate. The charter of the city then in force made the cost of grading the alley chargeable to the lots benefited thereby, and provided 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.” Laws of 1852, ch. 56, subch. 7, sec. 10, p. 94. This provision was so modified by Laws of 1869, ch. 401, as amended by Laws of 1870, ch. 401, that in a certain contingency (not material here) a portion of the cost might become chargeable to the proper ward fund. This immunity of the city from liability for the grading of the alley existed when the contract set out in the answer was made. Indeed, the provisions of the charter in that behalf were substantially inserted in the contract itself. The case made in the complaint is that the plaintiff entered into the contract, did the grading, and took the tax deed on the faith of the city records, which showed a legal assessment of benefits against lot eight; whereas, in truth and in fact, the assessment was .invalid because it was made upon an estimate of the cost of grading the alley, and not upon an estimate of the actual benefit accruing to the lot in consequence of the improvement. We think there is no sufficient averment in the complaint of fraud by any city officer in respect to the entries in the city records. It was said in Johnson v. Milwaukee, 40 Wis., 315, in respect to an assessment based, like this, on cost instead of benefits, that the board of public works presumably acted upon a misconstruction of the statute. There is no [375] averment that the board intentionally violated the law, or intended to defrand or wrong any one. The fair presumption is that it intended to comply with the requirements of the charter in that behalf, but failed to do so. At most it was an innocent mistake of law; and, manifestly, no inference of intentional fraud can properly be predicated upon such a mistake. Finding no charge of fraud in the complaint, we are relieved from determining whether the city would be liable in this action did it appear that the board of public works knowingly, and with intent to deceive and defraud the plaintiff or others, falsified the record of its proceedings.^ The question is, therefore, whether, under the provision of the charter above quoted the city can be held liable in this action, taking the averments of the complaint as true. The language of the provision is very broad and comprehensive. It is that m no event shall the city be held responsible for the work. There is no qualification or exception to this sweeping immunity from liability. Yet the construction of the provision contended for by the learned counsel for the plaintiff would make an exception against the city in a case where its officers had by mistake made an erroneous record. It seems to us that this construction would be an unauthorized interpolation of a qualification in the charter which the legislature never intended to enact. "We think, rather, that the object of the statute was to place the risk of 'such a mistake upon the holder of the grading certificate, and to relieve the city therefrom. In no other way can full effect be given to the language of the provision. In Allen v. Janesville, 35 Wis., 403, the common council had unlimited power to improve the streets, and the city charter contained no provision that in no event should the cost of such an improvement be chargeable to the city. The city ordered such an improvement, but failed to take proper proceedings to charge the cost thereof upon lots. The efiy [376] was held liable for such cost. It was taken as granted in that case that had the charter contained the provision relieving the city from liability therefor, the city could not have been held liabLe. We conclude that the complaint fails to state a cause of action, -and that the demurrer thereto was properly sustained on that ground. It becomes unnecessary to pass upon the other ground of demurrer assigned, to wit, the statute of limitations. By the Gourt.— Order affirmed.