Lisbon Avenue Land Co. v. Town of Lake

The following opinion was filed December 13, 1907: WiNsnow, J. The work in question was attempted to be ordered and done under the provisions of sec. 1346ír, Stats. (Supp. 1906; Laws of 1901, ch. 278), which provides, in substance, that any person residing in a town may construct a sidewalk not exceeding certain dimensions upon the line of the highway in front of premises owned or occupied by him, and that whenever the public convenience or safety requires any such sidewalk to be repaired the board of supervisors shall give written notice to the owner if known and residing in the town, and if unknown or not resident in the town shall post written notices in three or more public places in the town, requiring such repairs to be made within three days thereafter, and notifying such owner that unless such repairs are so- made the board will repair the same at the expense of the property. The section further provides that in case the owner does not make the repairs the board shall do so, and the cost shall be inserted in the tax roll against the property and collected as other taxes. This law is attacked by the respondent as unconstitutional, because it is said that no sufficient notice is provided for to the property owner, and — 475 — bence that it provides for the taking of property without due process of law, and reliance is placed upon Dietz v. Neenah, 91 Wis. 422, 64 N. W. 299, 65 N. W. 500. Just how far this case is to be regarded as authority, in view of later decisions of this court, may be doubtful. Gleason v. Waukesha Co. 103 Wis. 225, 79 N. W. 249; Roter v. Superior, 115 Wis. 243, 91 N. W. 651; Stone v. Little Yellow. D. Dist. 118 Wis. 388, 95 N. W. 405. It is quite certain, however, that, so far as sidewalk assessments are concerned, it has been distinctly held that a provision for notice to the property owner before the construction or repair of the sidewalk is not essential to the validity of the law. Hennessy v. Douglas Co. 99 Wis. 129, 74 N. W. 983. The principle is that the absence of a sidewalk or the presence of a defective sidewalk may be a serious public inconvenience, if not a menace to life and limb, and that a municipality may be clothed with power to build a walk or repair an existing walk at once without notice, and charge the expense to the property. In such case the act of the municipality is really an exercise of the police power, and the right to charge the expense against the property does not depend upon, nor is it limited by, the conferring of benefit upon the property. We conclude, therefore, that the law is constitutional. The law in question was evidently enacted for the purpose of making it lawful for residents of country towns to build sidewalks in tfyi highway in front of their premises subject to certain restrictions as to material and width, and to clothe the town authorities with power to see that such sidewalks are kept in a proper and safe state of repair. It is worthy of remark, in passing, that neither the builder nor the present owner of the sidewalks in question here was ever a resident of the town, and there may be a serious question whether under the law a sidewalk built by a nonresident of the town can be repaired by the town at the expense of the property. This question, however, has not been raised or discussed in the case, and in — 476 — the view we have taken of the merits we find it unnecessary to discuss it. While there appear in the record returned to this court written exceptions to certain of the findings of fact both on the part of appellant and of respondent, none of these exceptions have been preserved in the bill of exceptions, and hence the only question would ordinarily be whether the pleadings and findings sustain the judgment. Newton v. Williams, 94 Wis. 222, 68 N. W. 990; Dickey v. Pugh, 110 Wis. 400, 85 N. W. 963. Here, however, we meet with a serious difficulty, in this, that certain of the findings covering material and controlling facts directly contradict each other. The third finding of fact is to the effect that in the year 1902 the town board ordered said sidewalks in front of the lots described in the complaint to be taken up and relaid and caused the expense thereof to be charged to the lots and included in the tax roll, and made a contract therefor with the defendant Ollmann, who did the work under direction of the town board. This finding plainly means that the supervisors, acting as a board in legal meeting, determined and ordered that the very sidewalks in question should be repaired, and that Ollmann did the work under a valid contract with the board for such repair. But the court further found, in direct 'on-tradiction to these conclusions, by the fifth finding, that the town board never held any legal meeting at which any of the proceedings for doing the work were had; by the seventh finding, that Ollmann’s pretended contract was void and unauthorized; and, by the tenth finding, that the town board left the determination whether any, and if so what, sidewalks in front of plaintiff’s lots needed repairs to the defendant Ollmann. Now it is fundamental that when the law confers upon a municipal board the power to determine the necessity of a public improvement of this nature and to order that it be done at the expense of adjoining property, it is essential to the validity of the proceedings that such a determination and order be made by the board itself. The power cannot be dele — 477 — gated to others. Mere irregularities in the subsequent proceedings not affecting the substantial justice of the tax will not suffice to move a court of equity to interfere (Beaser v. Barber A. P. Co. 120 Wis. 599, 98 N. W. 525), but the initial determination of the necessity of the work by the body to which such determination is committed is deemed to be jurisdictional and vital. 25 Am. & Eng. Ency. of Law (2d ed.) 1211. Therefore the question whether the town board in fact ordered the sidewalks in question to be repaired, or whether it left the matter to 011m ann to determine which if any of them should be repaired, is a question which must be solved before proceeding to any other question. The findings being in conflict on this question, we might perhaps send the case back to the trial court for determination of this important question of fact, but we have concluded that in such a situation we may and should examine the evidence, and if we find thut either finding is supported by a satisfactory preponderance thereof, that we should adopt that finding as establishing the fact Upon examination of the evidence it appears that the minute book of the meetings of the town board for the years 1901, 1902, and 1903 was introduced in evidence, and that it contains the record of a meeting held by the board August 28, 1901, at which the board “did order and determine to notify all property owners having defective sidewalks in the town of Lake obstructed by earth to repair same, and lots owned by nonresidents to post up written notices in three public places according to law, and if said sidewalks shall not be repaired after serving of said notice, then the said board shall let contract to lowest bidder and tax up the cost against said property.” The record of this action appears twice in the bill of exceptions, and there appears to be an unexplained discrepancy between the two records. As first introduced by the plaintiff it reads as above indicated. Upon its second introduction by the defendants the words “obstructed by earth” do not appear, but instead thereof appear the words “district by ordering them;” — 478 — but, as this difference is rendered immaterial by the view we take of the effect of the resolution, we shall spend no more time upon it. This is the only record of any action by the town board which can be claimed to be a determination that any sidei-wallcs shall be repaired, and it is evident that this is no determination. It simply orders and determines that all defective sidewalks shall be repaired. Who is to determine what sidewalks are defective ? A sidewalk may be defective in the estimation of one person, but entirely sufficient in the judgment of another. No one can tell from this resolution what specific sidewalk or sidewalks the board considers defective or obstructed by earth, or what sidewalk or sidewalks they propose to order repaired. It fails to rise to the dignity of a determination that the sidewalk in front of any specific lot is defective or must be repaired. It was attempted by the defendant, however, to prove by parol testimony that the members of the board went over the ground in a body with a map, and orally decided what sidewalks should be repaired and marked them on the map, and that they subsequently prepared the notices for posting, and thus that the board in fact made the determination. This, however, was very plainly merely individual or committee action by the supervisors and not action by the board. The statute commits the determination of the matter to the board, not to the supervisors. A deliberative board acts only at a meeting either regular or special held pursuant to law. It is entirely clear from the evidence that these conferences held by the supervisors as they went over the ground or signed the blank notices were not in any sense meetings of the board. The supervisors themselves did not consider them as such. They neither prepared nor voted upon any written resolution, they kept no record, nor did they require the presence of the clerk. It further appears that the contract subsequently made with Ollmann does not specify what particular sidewalks he shall repair. We conclude, therefore, that the evidence does not show that any — 479 — determination or order specifying wbat sidewalks should be rebuilt or repaired was ever passed by the town board. On tbe other hand, there is considerable evidence to the effect that the contractor, Ollmann, himself determined, as stated in the tenth finding, which particular sidewalks should be repaired, and, in the absence of any proof that the town board made the determination, this latter finding must plainly be accepted as stating the correct conclusion. This consideration necessitates affirmance of the judgment and relieves us from the consideration of the numerous other contentions which were made in the case. In the absence of a reassessment law, a court of equity will not compel a property owner to pay an assessment for a local improvement the necessity of which has never been determined by the municipal board to which the law commits such determination, but only by a contractor. By the Court. — Judgment affirmed. Cassoday, C. J., and BashfoRD, J., took no part. A motion for a rehearing was denied February 18, 1908.