Anderton v. City of Milwaukee

Cassoday, J. Ey the ordinance enacted May 18, 1891, under the provisions of ch. 254, Laws of 1891, the newly-established grade of Third street in front of the plaintiff’s lots was raised very much above the grade as previously established, and so high as to be nearly two feet above the ground floor of plaintiff’s building. At the time of the commencement of this action the city, without any petition therefor or the consent of any of the lot owners to be affected thereby, was about to let the contract for raising said street up to such newly-established grade, and to repave the same, to the plamtiff’s great injury and damage, and to assess and charge against said lots a proportionate share of the costs thereof, without taking into account such injury or damage, or any benefits resulting therefrom. As the charter stood prior to the enactment of ch. 254, Laws of 284 1891, tbe plaintiff, as sucb lot owner, would have been entitled to compensation for all injury or damage in consequence of sucb change of grade. Sec. 8, subcb. 7, cb. 184, Laws of 1874. That provision of tbe charter gave to every lot owner in the city equal protection against damage or injury by reason of any subsequent change of an established grade. Ch. 254, Laws of 1891, undertook to suspend and declare inapplicable that provision of tbe charter as to that portion of tbe city lying between Grand avenue and Yliet street, and tbe Milwaukee river and Ninth street, and which fraction of tbe city includes tbe premises in question, and, according to tbe complaint herein, is less than half a mile square, comprising forty-nine blocks, and covers less than one fortieth part of tbe city; and said act in effect declares that the benefits arising from such change of grade should be deemed a full equivalent for all damages resulting therefrom, and that no damage, cost, or expense should be assessed or paid to adjoining lot owners by any such alteration of grade, but that all other provisions of the charter should remain applicable to said forty-nine blocks, the same as before said enactment. If the legislature had power thus to take away from the lot owners in forty-nine particular blocks of the city such rights of property so permanently secured to them by the charter, and at the same time leave such chartered rights unimpaired as to all other lot owners in the city, then the legislature has the same power as to the lot owners in a single block, or even as to the owner of a single lot in a block. It is one of the purposes of American constitutional law to prevent all such special class legislation. This court has repeatedly held void such discriminate exercise of arbitrary legislative power. Bull v. Conroe, 13 Wis. 233; Durkee v. Janesville, 28 Wis. 464; Hincks v. Milwaukee, 46 Wis. 559; Culbertson v. Coleman, 47 Wis. 193; Hughes v. Fond du Lac, 73 Wis. 382; Janesville v. Carpenter, 77 Wis. 303; 285 Wilder v. C. & W. M. R. Co. 70 Mich. 382; State ex rel. McCue v. Sheriff, 51 N. W. Rep. 112. In some of these cases, such discrimination between the rights of different suitors was held to be in violation of that provision of our state constitution which secures to every person a certain remedy in the laws for all injuries or wrongs he may receive in his person, property, or character. Sec. 9, art. I. It was to prevent such discrimination in the rights of persons and property that the constitution of the United States was amended so as to declare that no state shall “ deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” Sec. 1, art. XIY, Amendments. Here the act, as to owners of lots in the particular blocks mentioned, dispensed with any petition or hearing, and took away all right of compensation for any change of grade, whatever might be the injury or damage. It attempts to make an arbitrary classification and distinction,-in regard to such an established grade, between lots similarly situated and subject to the same, or substantially the same, conditions. This is certainly in violation of the constitutional provision quoted. Scott v. Toledo, 36 Fed. Rep. 385. See note to this case in 15 L. R, A. 830. — Rep. Besides, ch. 254, Laws of 1891, is essentially a local act, relating to a subject not expressed in its title, and hence is in violation of sec. 18, art. IV, Const. Wis. Durkee v. Janesville, 26 Wis. 697; Yellow R. Imp. Co. v. Arnold, 46 Wis. 214. By the Court.— The order of the circuit court is affirmed.