State ex rel. Moore v. Mayor of Ashland

Winslow, J. The relator sued out a writ of certiorari to review and reverse certain special assessment proceedings whereby a special assessment had been charged against his lots in the city of Ashland for the paving of the street in front of the lots. The action ivas tried upon the return to the writ made by the city clerk. Numerous irregularities in the proceedings were relied on by the relator to substantiate his contention. We shall discuss but one of these irregularities, which seems to us fatal to the assessment. The steps necessary to make a valid assessment for the paving of a street against abutting lots are found in ch. IT of the charter of the city of Ashland. Laws of 1889, ch. 27. . The provisions are, in brief, that streets may be paved, and the expense chargefi to abutting lots in proportion to the benefits accruing to the lots; that before any street is ordered to be paved the board of public works shall view the premises, ascertain the entire cost, and determine the amount of damages and benefits accruing to each abutting lot, and file a report showing these facts in their office; that they [602] shall give notice by, publication that such report is open for review at their office, and. will so remain for twenty days, and appoint a time for hearing objections thereto; that after such hearing they shall make their final and corrected report, and file the same with the city clerk; that this report shall be laid before the common council at their next regular meeting, and may be confirmed or corrected or referred back to the board for further consideration, and when finally confirmed the city clerk shall give notice by publication that a final determination as to the benefits to' be assessed against abutting real estate has been made; that appeals may be taken from such determination by any person aggrieved; that bids shall be advertised for by the board of public works, and the contract let by the board ;i that, after the contract has been completed to the approval of the board, “ the contractor shall be entitled to a certificate therefor as to each parcel of land against which benefits shall ham teen assessed for the amount chargeable to said lot.” Further provisions are contained in the chapter, as to the issuance of improvement bonds, which are not necessary to be stated. The plain and necessary import of these charter provisions is that lots are to be assessed for the proposed paving in proportion to the benefits accruing to them; that before any contract is made a preliminary assessment is to be made, reviewed, and corrected by the board of public works, reported to the council, and confirmed or modified and finally determined by the council. All these steps are plainly to be taken before the contract for the work is made or the work done. In the ‘ present case it appears from the return, not only that no preliminary assessment by the board of public works is on file or can be found in the office of the city clerk, but that the common oouncil never attempted to make or determine any assessment against any lots until the year following the inception of [603] the proceedings, after the contract had been fully performed. At this time the counci) attempted to make an assessment charging the entire cost of the work (which was considerably greater than the estimated cost) to the abutting lots, apparently on the front-foot rale, without determining that the lots were benefited in any amount. These defects in the proceedings are glaring, and fatal to the assessments. Myrick v. La Crosse, 17 Wis. 442; Kneeland v. Milwaukee, 18 Wis. 411. By the Gowrt.— Judgment reversed, and action remanded with directions to enter judgment for the relator vacating the assessment against his lots, in accordance with this opinion.