Carstens v. City of Fond du Lac

BaeRtes, T. Because in the year 1890 the plaintiffs paid their legal portion of the cost of paving that part of Third ■street in the city of Fond du Lac adjacent to their properties, and the city construed ch. 299, Laws of 1885, as not empowering it to charge an abutting owner with the cost of a subsequent pavement, it is asserted that the plaintiffs are forever immune from any special charge against their properties on account of paving the street adjacent thereto. This contention is grounded on the assertion that plaintiffs have a vested right of exemption from special assessment on 'account of •such paving under the law above referred to, and also upon the claim that the city by' its conduct has estopped itself from making any such assessment. It is urged that inasmuch — 470 — as a large amount of repaving was done at tbe general expense of the city after the passage of the law of 1885, and the plaintiffs have been compelled to contribute their share of such expense through taxation on their Third-street property,, it would be inequitable to require them to again assume the-principal part of the cost of repaving such street. The argument is plausible but not convincing. No scheme has yet been devised by which an equal and exact distribution of the trarden of taxation can be made. The right of exemption invoked, if upheld, might well result in greater injustice than would arise from failure to enforce it. If the contention of plaintiffs is well founded, the real estate of all property owners of the city of Fond du Lac, against which was charged a part of the expense of paving a street adjacent thereto from the year 1885 to the year 1904, would be forever exempt from paying any special assessment for repaving such street. The expense, perforce, would have to be borne by a general tax levy. The owners of property abutting on streets not paved in the manner stated between 1885 and 1904 could be-obliged to pay for the cost of paving the streets adjacent to their properties under the provisions of the general charter Jaw adopted in 1904, and, in addition thereto, would be obliged to defray their portion of the expense of repaving streets adjacent to the exempt property, if the contention of plaintiffs is correct. It is not difficult to see that such a condition might be grossly inequitable to such property owners as were not called upon to pay a special assessment for pave--mont expenses within the period stated. Assuming that the law was not correctly construed by the city authorities, and that a portion at least of the cost of repaving done after 1885 should have been paid by special assessment against abutting lots, the city was not thereafter es-topped from making a special assessment to defray the expense of a new pavement under the general charter law adopted by it. The compliance with a statutory duty en~ — 471 — joined upon the lotowners did not'create a contract by operation of law which exempted the plaintiffs from further special assessments for the cost of street paving. Rochester v. Rochester R. Co. 182 N. Y. 99, 74 N. E. 953. Neither did the 1885 statute give any vested right to exemption from further special assessments on account of repaving. At best, all the law did was to prohibit such assessments as 'long as it remained in force. It was subject to amendment in this regard, and was amended by the adoption of the portion of the general charter law which related to street improvements in lieu of the provisions of the special charter. Boyd v. Milwaukee, 92 Wis. 456, 460, 66 N. W. 603; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869; Washburn v. Oshkosh, 60 Wis. 453, 19 N. W. 364. It is urged that the adoption of so much of the general charter law as pertained to street improvements did not operate to repeal ch. 299, Laws of 1885, the portion of the special charter conferring the alleged exemption. Such act was a part of the special charter relating to street improvements. The provisions of the general law relating to such improvements were adopted in their entirety in lieu of all provisions on the same subject found in the special charter. We see no escape from the conclusion that the special charter provision under consideration was repealed. The effect of the action of the common council of the city in adopting portions of the general law is more fully considered in Willmer v. Goebel, ante, p. 419, 119 N. W. 115. The decided cases in this court sustain the ruling of the trial judge in holding that the complaint was demurrable because several causes of action were improperly united. The plaintiff Garstens was interested only in relieving his own property from the special assessment in question. 'Whether his neighbors paid or contested the tax did not directly concern him. Their paying the tax could not injure him, while it might be a benefit, because his portion of the general tax — 472 — for street improvements might thereby be lessened. To be sure, each lotowner on the portion of Third street which was improved had a common interest in the action to the extent that, if Carstens had the right to relief, others might for the same reasons .and on the same evidence obtain relief. But the property owners had no such common pecuniary interest ■■as authorized them to unite in one suit as plaintiffs. Barnes v. Beloit, 19 Wis. 93; Newcomb v. Horton, 18 Wis. 567; Howland v. Kenosha Co. 19 Wis. 247; Gilkey v. Merrill, 67 Wis. 459, 30 N. W. 733; Foster v. Rowe, 132 Wis. 268, 111 N. W. 688; Ill. S. Co. v. Schroeder, 133 Wis. 561, 113 N. W. 51. This is not an action respecting a common fund, nor to assert a common right, nor to restrain acts injurious to property in which the plaintiffs have a common interest or a common right. The right of a taxpayer to bring an action in his own behalf and in that of all other taxpayers is undoubted in such a case, or wherever municipal authorities are about to unlawfully dispose of public property, or pay out public funds, or enter into unlawful or unauthorized contracts which will require the use of public funds to discharge them, or are squandering the property of the taxpayers. The authorities which hold that such right exists are numerous. Peck v. School Dist. 21 Wis. 516, 522; Willard v. Comstock, 58 Wis. 565, 17 N. W. 401; Bay L. & L. Co. v. Washburn, 79 Wis. 423, 48 N. W. 492; McVichie v. Knight, 82 Wis. 137, 51 N. W. 1094; Fowler v. Superior, 85 Wis. 411, 54 N. W. 800; Land, L. & L. Co. v. McIntyre, 100 Wis. 245, 75 N. W. 964; Quaw v. Paff, 98 Wis. 586, 74 N. W. 369; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 83 N. W. 851. The doctrine of the foregoing cases does not apply where the real redress which the taxpayer is seeking is to relieve his property of a tax which he asserts to be void in whole or .in part. It is urged that there is a misjoinder of parties rather than — 473 — of causes of action. Tbis is not correct. The complaint “sets forth separate causes of action, one in favor of each plaintiff, without being separately stated; and if so, several causes of action are improperly united.” Barnes v. Beloit, supra. It follows that the demurrers interposed because several causes of action were improperly united were properly sustained. The plaintiffs declined to amend their complaint and a judgment of dismissal was entered. The judgment being correct, it is not necessary to decide other questions argued on the appeal. There are allegations in the complaint which tend to show that the alleged assessment of benefits and damages made by the board of public works was unjust, arbitrary, and illegal. If the plaintiff were suing simply to remove the cloud from the title to his own property created thereby, we do not decide that a case for relief has not been shown. Neither do we decide that it has. Secs. 925 — 184 and 925— 185, Stats. (1898), purporting to give a remedy.to the lot-owner by appeal from the action of the common council and to make such remedy exclusive, raise a serious question as to the right of the plaintiff Carstens to ignore such remedy and resort to a court of equity in the first instance. His silence while the board of public works and the city council were taking action in reference to the special assessment and while the improvement was being made, likewise raises a question which might seriously affect his rights. State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 214, 77 N. W. 167. These questions, however, we do not pass upon. The injunctional order issued in the case was dissolved before the demurrers were decided. If the only infirmity in a complaint is that several .causes of action have been improperly joined, we think it is within the field of judicial discretion in a proper case to continue the restraining order in force until the plaintiff is given an opportunity to amend. The only allegations of the complaint in the suit before us — 474 — that would in any view of the case support an injunction are made on information and belief. These averments are positively contradicted by certain affidavits filed on the motion to dissolve and áre not supported by counter affidavits. Under these circumstances the court very properly granted the motion to dissolve. Dinehart v. La Fayette, 19 Wis. 677; Tainter v. Lucas, 29 Wis. 375; Schœffler v. Schwarting, 17 Wis. 31; Smith v. Appleton, 19 Wis. 468; Pittelkow v. Herman, 94 Wis. 666, 69 N. W. 805. By the Court. — The orders and the judgment appealed from are affirmed.