Saunderson v. Herman

Newman, J. The change of grade of Cape street, though not great, might very well be of considerable damage to the respondents’ property. At least, it cannot be presumed that it would be without damage. The respondents might well stand upon their legal right to require benefits and damages to be assessed according to law. No valid charge against their lots could be created except by a strict adherence' to the authority given by the city charter. The only assessment of benefits and damages which was made by the board of public works, before making the contracts and ordering the work, is in the exact form and words of the assessment which was condemned in Liebermann v. Milwaukee, 89 Wis. 336. It seems to have been made upon the same blank. Both assessments having been made under the same charter, it seems necessarily to follow that that case must govern this. The attempt is made to avoid the rule in that case by allegations in the answer that the board of public works did duly consider the matter, and “ were of the opinion that no damage would result to the plaintiffs [respondents] by reason of such change of grade,” and “ the plaintiffs’ [respondents’] property was not damaged in any manner whatever by such change of grade.” While these allegations might be sufficient under the general rules of pleading, they make no issue here, because the assessment of benefits and damages actually made by the board of public works is attached to the complaint and made a part of it, and its accuracy is [51] conceded, for no issue is made upon it by the answer. In Liebermann v. Milwaukee, supra, it is said that “ the certificate is void upon its face for failure to show affirmatively that it was made in conformity with the authority conferred upon the board of public works by the provisions of the charter.” There is no way in which a void proceeding can be made valid by evidence. If it were onl j prima fade or apparently void, evidence might aid it. The reason why it is void is the necessity that it shall “ show affirmatively on its face ” a compliance with the power conferred. Eor this reason the assessment itself is the only competent evidence to show a compliance with the charter. 1 Greenl. Ev. § 86 Blackwell, Tax Titles, 248, 512 [§§ 448,1100 et seep]; Black, Tax Titles, §446; Iverslie v. Spaulding, 32 Wis. 394. Eo evidence could be received under these allegations of the an-, swer. The answer states no defense. By the Gou/rt.— The judgment of the circuit court is affirmed.