Kersten v. City of Milwaukee

The following opinion was filed February 2, 1900: BaRdebst, J. The court has found that the assessment made by the board of public works was arbitrary and based solely upon the cost of the work in front of the abutting lots. A similar assessment was before this court for review in the case of Liebermann v. Milwaukee, 89 Wis. 336. The facts are not the same, but the form of the assessment in that case varies in no material respect from the one under consideration. There it was said that the assessment was void on its face for a failure to show affirmatively that it was made in conformity with the requirement of the charter. Rut we are not to dispose of this assessment by what alone appears upon the face of the proceedings, as in Hennessy v. Douglas Co. 99 Wis. 129. With the accompanying facts and circumstances, it shows quite conclusively that the board could not have exercised their judgment in arriving at a result. That this assessment of benefits to each of the adjoining lots should correspond in each case to as many dollars as the abutting lot had feet of frontage, and that the aggregate of benefits should very closely approximate the total cost of the work, are circumstances too significant not to arouse suspicion. Especially is this so when it is shown that opposite some of the lots there was a deep cut and others a deep fill. It is not enough for the board to say that they viewed the premises and exercised their judgment, if the facts negative that assertion. Here the facts cry out so [205] loudly against the conclusion reached that we find no difficulty in agreeing with the court’s estimate of the board’s procedure. Hayes v. Douglas Co. 92 Wis. 429. But we cannot, by any means, agree with the court’s judgment. It seems to be conceded that the city has, under its charter, ample power to establish the grade of alleys, and that it did, on May 27, 1896, duly adopt and pass an ordinance fixing and establishing the grade of the alley in question. This was the initial step, without which any attempt to improve the alley would have been without foundation. In following out the line of procedure indicated by sec. 6 of subch. YII of the charter [ch. 184, Laws 1874, as amended], the board of public works made the proper estimate of the cost oí the work proposed to be done, and made the usual recommendation to the council. Thereupon a resolution was introduced in the council, which declared that it was necessary to grade and pave such portion of this alley, for the reason that it was inadequate, inconvenient, and unsafe for public use and for the drainage of water therefrom; and that it was necessary to cause said work to be done without a petition from the abutting owners, for the reason that such owners had failed to make the alley in a suitable condition for public use. This resolution was first referred to the local committee of the Eleventh ward,— being the ward where the alley was located, — ■ who recommended that it be adopted. It was then referred to a special committee of five members, no one of whom was a resident of said ward, who likewise reported recommending its adoption. The resolution was presented to the council August 3d, and passed and adopted by the council on August 31st by a vote of thirty-nine members in the affirmative. This was, as we regard it, a proper compliance with the charter requirements. Boyd v. Milwaukee, 92 Wis. 456. The contention that sec. 6 does not permit the improvement of an alley without a petition from abutting lotowners is altogether too technical to re [206] ceive approval. A fair construction of the rather indefinite provisions of that section has led us to the conclusion that such grading may be done without petition, when the council follow, as they did in this case, the technical course of procedure therein mapped out. The initial steps leading up to the improvement of this alley having been taken in conformity to the charter requirements, the city was invested with jurisdiction to proceed. The next step — the assessment of benefits and damages — was, as we have seen, wrongfully taken, and rendered subsequent action void. Sec. 11, subeh. YII, provides that the owner of any lot who feels himself aggrieved by any assessment may appeal to the circuit court and have his grievance therein determined; and it is urged that this gives him an ample and exclusive remedy. In cases where the initial steps have been such as to give the city jurisdiction to proceed, this argument appeals to us with considerable force; but this court having held in a long line of decisions that the remedy by appeal is not exclusive where the assessment is shown to be arbitrary and fraudulent, we feel compelled to follow them. Harrison v. Milwaukee, 49 Wis. 247; Watkins v. Milwaukee, 52 Wis. 98; Liebermann v. Milwaukee, 89 Wis. 336. Admitting that plaintiff may maintain a standing in a court- of equity, the'trial court should have considered and applied a very important and salutary provision of law, apparently enacted to cover just such cases as this. We refer to sec. 12105, Stats. 1898. This section provides that in actions of this kind, if the court shall determine that such an assessment is invalid by reason of a defective assessment of benefits and damages, it shall stay proceedings in such action until a new assessment therefor be made, and thereupon the proper city authorities shall proceed to make a new assessment, as is required by law in the case of such original assessment. It also gives the plaintiff the right to contest such new assessment, and points out the method of procedure. [207] "When the proper assessment is finally determined, the court shall make an order requiring the plaintiff to pay the same as a condition of judgment. The fact that the plaintiff seeks relief for the invasion of Ms premises need not interfere with the complete application of this statute to the situation. It being found that the city has the right to grade the alley, a •court of equity may readily adjust and fix the rights of the parties as to the matters not connected with the reassessment, and give the appropriate relief, and still obey the statute in regard to the procedure for reassessment. Independent of this statute, we cannot quite understand how a court of equity could have felt warranted in requiring the defendants to restore the alley to its original condition. The intrusion upon plaintiff’s lot by the city and its contractors was wholly unwarranted, as they have admitted by not appealing from that portion of the judgment requiring them to restore his premises to their original condition. 'The only other matter concerning which the plaintiff has any right to complain is that a proper assessment of benefits has mot been made. Other people besides plaintiff have rights in this alley, and, before the court should have required a restoration to the original condition, some proof as to the situation should have been taken. It is fairly inferable from the case that the original condition was unsafe and dangerous. Suppose it was shown that all the other owners had •acquiesced in the change, and had paid their assessment of benefits, would a court of equity be warranted in making a judgment which seriously interfered with their rights and did not benefit the plaintiff ? A mere statement of the query would seem to furnish an answer to it. The judgment in this regard was wholly unwarranted under any view of the •case. ' • We summarize our conclusions as follows: That the city has the power to and has properly established the grade of this alley; that the action of the council in directing the [208] grading and paving of the alley, under the proofs offered, was proper and legal; that the assessment made by the board of public works was'arbitrary and illegal; that the situation presented is such that the court should order a stay of proceedings in so far as relates to the assessment of damages and benefits for the improvement of the alley, and direct a reassessment and proceedings under sec. 1210<?, Stats. 1898. To this end, those portions of the judgment appealed from are reversed, with costs, and the cause is remanded for further proceedings in accordance with this opinion. By the Oourt.— So ordered.