Dahlman v. City of Milwaukee

Marshall, J. Tbe primary right claimed by plaintiffs is that tbeir property was not legally chargeable with the improvement tax which, in form, was imposed thereon and a certificate issued therefor and delivered to respondent. The principal defendant necessarily was the city of Milwaukee, it being the actor in imposing the tax and in enforcing the same, to the plaintiffs’ injury by a sale of the property. Respondent Beck, as the owner of the tax claim, was a proper, if not a necessary, party defendant. It would seem, since the city in case of plaintiffs prevailing could not proceed to enforce the tax for the benefit of Beck, that he was a necessary party. If he had not been joined in the first instance it is quite clear that it would have been the duty of the court to order him brought in under the mandatory rule of sec. 2610, Stats. 1898, which provides that “when any persons not parties to the action have such interests in the subject matter of the controversy as to require them to be made parties for their due protection, the court shall order them to be brought in.” As this court has previously, in principle, decided, had Beck not been made a party at the outset or before trial, it would have been improper for the court to proceed to- final judgment declaring the improvement certificate void without ordering him brought in, and the order being obeyed, whether either of the parties moved the court to that end or not. McDougald v. New Richmond, R. M. Co. 125 Wis. 121, 129, 103 N. W. 244. The scope of the court’s power when a person is properly or necessarily joined with the main defendants in a suit in equity is covered by secs. 2656a and 2883, Stats. 1898. The first section provides: “A defendant . . . may have affirmative relief against a codefendant, or a codefendánt and the plaintiff, or part of the plaintiffs, or a codefendant and a person not a party, or against such person alone, upon his being brought in; but in — 476 — all such, cases such relief must involve or in some manner affect the contract, transaction or property which is the subject matter of the action.” It further provides that the relief may be demanded in the answer or by cross-complaint, and for service of the pleading upon the codefendant against whom the relief is 'demanded, and that unless affirmative relief shall have been so claimed by a pleading so served none shall be adjudged. The latter section provides that a “judgment may be given . . . determining] the ultimate rights of the parties on each side, as between themselves.” Thus it will be seen that since respondent by answer or cross-complaint claimed affirmative relief against his codefendant, the appellant, it was competent for the court to determine the ultimate rights of the two in respect to the matter so far as such determination affected the transaction which was the subject matter of the action. That such transaction was the assessment of benefits and damages as to the plaintiffs’ property in respect to the improvement of the street in question and the validity of the determination as to the proportion of the cost of such improvement chargeable to plaintiffs’ land and the proportion payable otherwise, does not seem to be open to reasonable controversy. The rule laid down in Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776, that where a defendant in equity pleads a cause of action against a codefendant which would, independently of the main cause, be a proper ground of complaint at law against such codefendant, though so far germane to such principal cause, in case of that being a good one, as to be presentable therewith, — if it be held not good and the complaint be dismissed on that ground the dismissal will carry the incidental cause with it, does not apply here. The main cause in the case in hand was held good and the full relief demanded by plaintiffs was substantially granted. The mere fact that there was a re-assessment of benefits and damages under a law providing therefor, and that a valid assessment — 477 — of benefits and damages in tbe first instance was not, in view of tbe re-assessment statutes, a condition precedent to grading tbe street so tbat a failure to make a valid assessment at first was not irremediable as regards tbe liability of the city for damages, did not militate against plaintiffs’ invoking equity jurisdiction to prevent tbe sale of tbeir land to collect tbe illegal tax. Sec. 1210e, Stats. 1898, as amended by ch. 354, Laws of 1903, plainly contemplates tbe existence of tbe right to use such jurisdiction and regulates tbe remedy in connection with tbe re-assessment law so as to do complete equity between tbe parties, in tbat it provides, in any action to avoid a street improvement tax certificate upon its being determined tbat the special tax is void for want of a proper assessment of benefits and damages, for a stay of proceedings to await tbe result of a valid assessment of benefits and damages and for tbe property owner then paying into court “for tbe benefit of tbe parties entitled thereto” tbe amount so found chargeable to bis property as a condition of bis having a judgment for costs, and provides tbat upon failure to satisfy such condition judgment dismissing bis complaint with costs shall be rendered. On tbe question of whether sec. 1210d, Stats. 1898, as amended and found at ch. 276, Laws of 1903, and sec. 1210e, Stats. 1898, as amended by ch. 354, Laws of 1903, apply to tbe re-assessment made in this case, tbe cause is ruled by Dahlman v. Milwaukee, 131 Wis. -, 110 N. W. 479 (opinion by Mr. Justice Winslow). What is said in that case renders it unnecessary to discuss tbe subject in this opinion and unnecessary to point out tbat in this language in said cb. 276, “and tbe excess in tbe amount of sncb valid certificate over such new certificate, if any, shall be paid to said bolder, or person, out of the proper fund,” tbe word “valid” should be read “invalid,” tbat clearly having been tbe intent of tbe legislature. See ch. 501, Laws of 1905. Sec. 1210e, as amended, is supplementary to sec. 1210d, — 478 — as amended. The procedure in the former differs from that in the latter, as to the manner of enforcing payment of the amount determined by the re-assessment proceedings to be chargeable against the property, but the right of the holder of an invalid street improvement certificate, upon a valid assessment of benefits and damages being made, showing the amount for which the certificate should have been issued, to recover •the whole amount called for' by such invalid certificate, part on account of the property involved and part “out of -the proper fund,” seems to be absolutely secured to the certificate holder by the latter section. It provides, generally, that when any special assessment certificate is invalid for failure to make a proper assessment of benefits and damages the city authorities shall proceed to make a new assessment of benefits and damages in the manner provided by law. Sec. 1210e, Stats. 1898, as amended, among other things, provides that when in any action to set aside a special assessment certificate the court shall determine that the assessment is invalid because of a defective assessment of benefits and damages the proper city authorities shall proceed to make a new assessment of benefits and damages as required by law, etc., thus recognizing the duty imposed by sec. 1210d The re-assessment" as regards the ultimate rights of the parties interested is quite clearly intended to be the same whether it is made by order of the court in an action, or independently thereof, though the proceedings to enforce such rights are somewhat different in one case than in the other. In either the property holder is directly or indirectly held liable for the amount chargeable to his land for the benefit of the contractor making the improvement, and the latter is protected as to the balance the same as he would have been if a valid assessment of benefits and damages had been made in the first instance, by the difference between the amount chargeable to the property and the contract price for the work of making the improvement in front of the same to the center of the street being made “payable out of the proper fund.” — 479 — True see. 1210e, Stats. 1898, as amended, as counsel for the appellant contend, makes no mention of relief grantable to the contractor, except as to the amount of the invalid improvement certificate properly chargeable to the land against which it was issued. But just as true, as an original matter, it does not confer the right to recover of the property owner or out of his land the amount legitimately chargeable to such land as determined by the re-assessment. That properly speaking is secured by sec. 1210d. The supplementary section only provides a method of enforcing collection of it, viz.: by declaring that the property owner shall make payment into court for the benefit of the parties entitled thereto as a condition of final relief in the action. We cannot agree with counsel for appellant that the court in dealing with this subject, in equity, is limited as to grantable relief to that specified in sec. 1210e. It by no means militates against the requirements of sec. 2610 as to the necessity for making the certificate holder a party defendant in the suit to set aside the certificate nor the other section to which we have referred as to settling the rights of codefendants between themselves and granting appropriate relief accordingly upon proper pleadings claiming the same. If respondent had a right, as shown by the result of the re-assessment proceedings, to recover the difference between the amount called for by the invalid certificate and the amount found justly and legally chargeable to plaintiffs’ land, a settlement of the rights of defendants between themselves under sec. 2610 of the Statutes required that fact to be adjudicated, and affirmative relief in respondent’s favor against his codefendant in response to secs. 2656a and 2883 of the Statutes to which we have referred required the entry of judgment in accordance with such fact. Counsel for appellant call attention with much confidence to these facts as fatal to the judgment: First, sec. 21, ch. V, of the city charter of the city of Milwaukee provides that any person who shall have contracted with the city to do street improvement work and to be paid for from special assessments — 480 — upon the abutting property shall have no claim against the city in any event except for the proceeds of the special assessments, and that no work proper to be paid for by such assessments shall be contracted to be paid for in any other way, and sec. 10, ch. VII, of such charter provides that street improvement work of the sort involved in this case shall be contracted to be paid for in special assessment certificates so far as the benefits to the parcels of land respectively abutting on the street improved properly assessable to such lands will go for that purpose, and that the balance as to each parcel shall be paid out of the fund of the ward in which such parcel shall be situated; second, the contract between respondent and the appellant was to the effect that the latter would receive special assessment certificates in payment and satisfaction of his work to the extent that the amounts thereof would go in liquidation of the same without any other claim upon or liability of the city on the contract for any amount included in such certificates ; third, it has been repeatedly decided by this court that where street improvement work, according to the provision of the city charter where the same is done, can be paid for only in special assessment certificates against the abutting property, the person doing such work takes all the risk of the regularity of the proceedings in- respect to making the special assessments and has no claim whatever against the city in case of the special taxes being uncollectible by reason of the assessments failing for any reason; that he is without any remedy whatever against the city, it not being responsible for the validity of its proceedings, and only being, in contemplation of law, the agent of the owner of the certificates to collect the same so far as the charter makes provision in that regard. On this counsel cite many cases, the most significant of which are Eilert v. Oshkosh, 14 Wis. 586; Fletcher v. Oshkosh, 18 Wis. 228; Hall v. Chippewa Falls, 47 Wis. 267, 2 N. W. 279; Zwietusch v. Milwaukee, 55 Wis. 369, 13 N. W. 227; Hoyt v. Fass, 64 Wis. 273, 25 N. W. 45; Heller v. Milwau — 481 — kee, 96 Wis. 134, 70 N. W. 1111, and Roter v. Superior, 115 Wis. 243, 91 N. W. 651. The two sections of the Milwaukee city charter referred to should he read together as part of the general scheme for doing street improvement work by contract, the cost thereof in front of each parcel of land abutting on the street improved to the center thereof to the extent of the net benefits thereto accruing by the improvement to be paid by the owner of such parcel and the balance to be paid by the city out of the fund of the ward in which the land is located. No work proper to be paid for by special assessment certificates shall be contracted to be paid for in any other way, is the .command of the charter, but no work is proper to be paid for by such certificates except to the extent of the net benefits accruing to the parcels of land respectively fronting on the street improved. True the charter declares, as we have seen, that the contractor agreeing to take his pay in special assessment certificates shall have no claim against the city on account of his work except for the collection of such certificates, but that does not militate against the execution of any corrective law designed to determine the proper amount of such benefits in case of the original determination being inefficient and the enforcement of the rights of the contractor as thus readjusted. True also the contract between the respondent and the appellant, following the requirements of the charter, bound the former to take special assessment certificates in payment of his work to the extent of the net benefits accruing thereby to the parcels of land fronting on the street improved, but that, too, did not preclude his having the benefit of any law designed to determine the amount of such benefits in case of the initial determination being ineffective. True also, as this court has frequently decided, and it is the settled law, where the cost of street improvement work is payable only by special assessments against the abutting property, failure of the assessments for neglect to comply with the law in making the — 482 — same does not render the city liable to tbe contractor, but such rule manifestly does not stand in the way of the execution of a valid law providing for an efficient ascertainment of the amount chargeable to the parcels of land abutting on a street improved in case of the initial assessment failing. Moreover, that has nothing whatever to do with the subject of municipal liability for the cost of street improvement work not chargeable to the abutting property. The provisions of the city charter to which we have referred and the contract between respondent and appellant are subject to the re-assessment laws, which are in effect amendments to the city charter. Such manifestly is the legislative plan. That such laws are constitutional and effective as designed by the lawmaking power is not open to reasonable controversy at this time. As was said in Sanderson v. Herman, 108 Wis. 662, 669, 84 N. W. 890, 85 N. W. 141: “The authority in our own state is overwhelming in support of laws authorizing re-assessment both of general taxes and of special assessments. There can be no doubt that the legislature has power to ratify imposition or direct re-assqssment of taxes which it might originally have authorized. ... If it be urged that conditions required by the charter originally cannot now be complied with, — such, for example, as the ascertainment of benefits and damages cannot now precede the letting of the contracts, as was obviously the policy of the charter, — it is a complete answer that the legislature might originally have authorized a special assessment without making such ascertainment an essential preliminary to contracting.” Without further discussion we may well conclude, in harmony with Haubner v. Milwaukee, 124 Wis. 153, 101 N. W. 930, 102 N. W. 578; Pabst B. Co. v. Milwaukee, 126 Wis. 110, 105 N. W. 563; and Dahlman v. Milwaukee, 131 Wis. -, 110 N. W. 479, that the plain purpose of the re-assessment laws under consideration was to provide a remedy, in case of special assessments to pay for street improvements — 483 — proving uncollectible after the'doing of the work, for an efficient readjustment of the rights of the three parties concerned: the municipality, the property owner, and the contractor. That was very distinctly held in Haubner v. Milwaukee, supra, it being said, in effect, that while sec. 1210e only requires the property owner to pay into court the amount justly chargeable to his land according to the re-assessment, the rights of the contractor are also involved and are to be deemed the same as in case of an appeal by the property owner, under the charter provision on the subject, from the determination as to the amount chargeable to his land for net benefits accruing from the improvement: that is, after taking account of the net benefits, as finally determined, the difference between the amount charged in the illegal certificate and the proper amount is payable “by the city out of the proper ward fund.” Sec. 11, ch. VII, Milwaukee Charter. In harmony therewith in Pabst B. Co. v. Milwaukee, supra, it was said: “The amount of the assessment, if illegally arrived at in the beginning, may be changed to the proper amount by reassessment proceedings.” It must necessarily follow, and such, it seems, is in effect expressly provided for in sec. 1210d, as amended, that if the amount payable by the city is illegally arrived at in the beginning it may be changed to the proper amount by the reassessment proceedings and collected accordingly. So, as we must conclude, the charter of the city of Milwaukee and the re-assessment statutes supplementing the same secured to the respondent the right to receive of the appellant the'difference between the contract price of the improvement in question in front of plaintiffs’ property and the amount properly chargeable thereto, according to a valid ascertainment of the same, as provided in the charter, in case of the initial determination failing for want of a proper determination of benefits and damages. We are not troubled in this case with — 484 — any question of retroactive legislation, since tbe re-assessment statutes existed at tbe time tbe contract involved was made and form a part thereof as effectively as if referred to therein. We should say in passing that it is not intended by this to suggest that tbe right of tbe respondent would be different if tbe situation were otherwise. Tbe right of respondent being as indicated, tbe judgment complained of goes no further than to fully vindicate it. The-court in accordance with settled principles of equity jurisprudence, as embodied in sec. 2610 and sec. 2883 of tbe Statutes, determined tbe ultimate rights of defendants between themsélves and granted tbe proper affirmative relief prayed for by a proper pleading under sec. 2656a of the Statutes. Tbe result of tbe foregoing as a rule is this: In case of an invalid determination of tbe net benefits accruing to a parcel of land abutting on a street by reason of tbe improvement of such street, tbe cost of tbe improvemént being payable to tbe contractor, to tbe extent of tbe net benefits to such property, by a special assessment certificate issued against tbe same and tbe balance by tbe municipality, and tbe work having been done and a proper certificate, in form, issued to tbe contractor, and tbe owner of tbe land commencing an action to set aside tbe certificate because of failure of tbe municipal authorities to properly ascertain tbe net benefits to bis land, — tbe owner of tbe certificate should be made a party defendant and tbe rights of tbe plaintiff as to tbe defendants and tbe rights of tbe latter as between themselves should be settled by tbe final decree, and in case of its being determined, in tbe manner provided by law, that tbe amount charged for the- improvement against tbe plaintiff’s property is excessive, and tbe excess determined, judgment therefor should go against tbe municipality in fayor of tbe contractor, if properly claimed by tbe latter’s pleading. Such was tbe course pursued in this case. By the Court. — Tbe judgment is affirmed.