Holt Lumber Co. v. City of Oconto

EjeRWIN, J. The material allegations of the complaint, in so far as they form a basis for the plaintiff’s alleged right to recover, are set out briefly in the statement of facts. The learned trial judge in sustaining the demurrer wrote an opinion, which is in the record, in which he discusses various provisions of subch. XX of the general charter law (secs. 925— 208 to 925 — 239c, Stats. 1898) as they bear on the ordinances passed by the defendant city, and arrives at the conclusion that the complaint states no cause of action, and we are of the opinion that the conclusions reached by the trial judge are correct. — 505 — Two main contentions are made by appellant’s counsel as grounds for reversal of tbe order appealed from:- (1) That sec. 925 — 208, being tbe first section of subcb. XX, is an option law, and that when tbe city exercises its option thereunder and elects one of tbe methods of payment for sewers its power in that regard is exhausted and it cannot change to any of the other methods provided therein; and if the statute permits the change it is unconstitutional. (2) That if it be held that sec. 925 — 208 is not an option law and that the statutes in question are constitutional, there is no authority for payment for any sewer work other than for main sewers, and that the tax is void because levied for sewers other than main sewers. The defendant city was divided into sewer districts under its special charter in May, 1895, by ordinance No. 212, and subch. XX of the general charter was adopted in September, 1895. In November, 1904, ordinance No. 217 was passed, which provided that the cost of all sewers should be paid out of the funds of the sewerage district within which the sewer or sewers may be constructed. In February, 1905, the defendant city passed ordinance No. 280, which divided the city into sewer districts and amended the prior ordinance and confirmed the method of paying for constructing and maintaining sewers as provided by ordinance No. 277. Afterwards and in October, 1909, ordinance No. 318 was passed, which provided that the cost of all main sewers thereafter constructed, except the cost of catch-basins, overflow pipes, and temporary catch-basins, the cost of repairing and cleaning sewers, and the expenditures for temporary work necessary to carry on the system of sewerage, should be paid out of the general fund, the intention being that, no expense for ■ the construction of main sewers should he paid by abutting property owners or out of any sewerage district fund. It is strenuously insisted by counsel for appellant that the defendant city had no power to pass ordinance No. 318, because it had no authority to change the method of payment for — 506 — sewers, — that its power in that regard, having been exercised by the passage of a prior ordinance, was exhausted. Counsel relies upon Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; State ex rel. Williams v. Sawyer Co. 140 Wis. 634, 123 N. W. 248, and some Pennsylvania cases; also Atlantic City W. W. Co. v. Atlantic City, 39 N. J. Eq. 367, and East Tenn., Va. & Ga. R. Co. v. Frazier, 139 U. S. 288, 11 Sup. Ct. 517. A careful examination'of the cases cited convinces us that they do not support the appellant’s contention. The Northern T. Go. Gase deals with a situation clearly involving an option law, namely, a general law pertaining to county government, giving an option to county boards to severally put the same into effect in their respective counties, and giving no power to repeal their action and restore the former situation, and it was held that, the county board having given effect to the law, it could not abolish such effect. In other words, the case holds that power to give effect to an option law does not carry with it by implication power to abolish it. In State ex rel. Williams v. Sawyer Co., supra, the county board passed a resolution adopting the provisions of ch. 651, Laws of 1907, relating to the establishment of special municipal courts in the counties of this state, and it was held that it could not afterwards rescind its action. At page 641 the court said: “If the law had been properly adopted and the proper resolution had been passed creating the court, it would be beyond the power of a county board by subsequent resolution to rescind its action, at least in the absence of express legislative authority so to do.” This court has ruled that an option law “must be a complete enactment in itself. It must contain an entire and perfect declaration of the legislative will, and it must require nothing to perfect it as a law. The only thing that may be left to the people to determine is whether they will avail themselves of its provisions.” State ex rel. Williams v. Sawyer Co., supra — 507 — (p. 636) ; State ex rel. Att’y Gen. v. O’Neill, 24 Wis. 149 Slinger v. Henneman, 38 Wis. 504; Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Commission, 136 Wis. 146, 116 N. W. 905; Adams v. Beloit, 105 Wis. 363, 81 N. W. 869. Sec. 926, Stats. (1898), as amended (Laws of 1899, cb. 51: Supp. 1906), provides: “All cities incorporated by special act shall have the powers, privileges and franchises and be subject to the duties and liabilities in this chapter provided for, as well as those applying to specially incorporated cities in chapters 40a and 41, in addition to those provided by the act of incorporation, all conflicting provisions of such special act to the contrary notwithstanding. . . . Any such city may adopt the provisions of any subchapter, section or subdivision of any section of chapter 40®, and may exercise any power or franchise thereby conferred upon cities organized under said chapter, in addition to or in lieu of the provisions of its special charter and the powers and franchises therein specified, by an ordinance adopted for that purpose by. a three-fourths vote of all the members of the council elect, and when adopted as herein prescribed such ordinance shall operate to that extent as an amendment of such charter. . . .” The feature of the law in question which gives it character as an option law is the right conferred to allow adoption of the general charter or a part of it and not an option in the administration of the law after adoption. After subeh. XX of the general charter was adopted by defendant city it was bound by it and could not abrogate it. Northern T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460. The defendant city could not say it would be bound by some of the provisions adopted and not by all. When it exercised its option it exhausted its power. There is nothing in the law indicating an intention on the part of the legislature to delegate power to the defendant city to reject any provision of subeh. XX or modify it after it had been adopted, even if the legislature had power to delegate such authority to the city. This court has decided, in a case respecting the adoption — 508 — •of a portion, of tbe general charter, that an option law must be a complete law in all its details when it leaves the legislature, so that nothing is left open save the determination of the fact when it is to go into effect; that any other rule would result in practical delegation of legislative power. “If the governing body of a municipal corporation can take such parts as it chooses from a complete law, and reject such parts as it chooses, the result will be, not the law which the legislature has enacted, but a law which the corporation has enacted. In such a case the legislature has never said that the parts chosen by the corporation should constitute a law, .standing by themselves, but the governing body of the corporation has said so. This must be legislation, or it is nothing ; and, if it be legislation, it is legislation by the municipal corporation, and not by the legislature.” State ex rel. Boycott v. Mayor, etc. 107 Wis. 654, 84 N. W. 242. Now it seems plain that when the defendant city adopted subch. XX, which is a complete enactment, it had exhausted its power so far as the subchapter adopted was concerned under the doctrine of the cases heretofore cited, and that the ordinances providing for the construction of sewers were acts of administration under the subchapter after its adoption. As we understand the argument of appellant it is contended that subch. XX provides three modes of constructing and maintaining sewers, namely: (1) by the city at large; (2) by sewer districts; and (3) by abutting property owners. And it is argued that when the first ordinances were passed, providing for the payment by districts, the city could not afterwards •change to any other system, because it had exhausted its power in that regard. We think a careful reading of subch. XX will show that it was designed as one system, and not three, with authority on the part of the city adopting it to take advantage of the different provisions as occasion might require, and that the exercise of one method did not eliminate the •other methods. In other words, it was the manifest intention •of the legislature, as shown by the different sections of the — 509 — statute, that all three methods might be used at the same time. Therefore the right vested iu the city by adoption of subch. XX was the right to exercise the three methods. We shall briefly refer to some of the provisions of the law which show that the three methods prescribed were calculated to be used together. The first section of subch. XX, sec. 925 — 208, Stats. (1898), provides that “All cities shall have full power to construct systems of sewerage and to provide for the payment for sewers by the city, by sewerage districts, or by abutting property owners.” This section further provides that no city shall enter upon such construction until it shall have been divided into sewerage districts and a plan adopted in the manner specified, and that the section shall not apply to cities already divided into sewerage districts which have adopted a sewerage system. Sec. 925- — 218 of subch. XX provides that the cost of all sewers in street and alley crossings and of all sewers in excess of $2 per linear foot chargeable to lots and lands as provided in sec. 925 — 216, of all catch-basins receiving water from gutters and of the overflow pipes connecting them with sewers, of all temporary catch-basins, of repairing and cleansing of sewers and all expenditures for temporary work necessary to carry on the system of sewerage, and all the cost of constructing sewers not provided for by special assessment, shall be paid for out of the fund of the proper sewerage district, and that “The cost of constructing the main sewers within the city limits or extending beyond the same may be paid for in whole or in part by the city out of the general fund or out of the funds of the proper sewerage district, or by abutting property owners, as the council shall by ordinance direct.” Sec. 925 — 215 provides that “Such contract may, at the option of the city, except as herein otherwise provided, require the contractor to receive as payment for so much of the work as has been assessed against the lots opposite to the front of which any such sewer shall extend, certifi — 510 — cates against such lots respectively, or improvement bonds, and the residue of such contract shall be paid out of the proceeds of the general sewerage tax to be levied on the real estate and personal property within the sewerage district by the council on the recommendation of the board of public works.” Sec. 925 — 216 provides that “After any contract for work under this subchapter, to be paid for in whole or in part by such assessment, shall have been entered into, the board of public works . . . shall make an assessment against all lots . . . fronting or abutting on the work so contracted to be done. . . These provisions clearly recognize that different methods may be followed at the same time and are inconsistent with the option theory contended for by appellant, since it is provided that the expense of sewers not assessed against adjoining lots must be paid out of the sewerage district fund, except the cost of main sewers, and all main sewers also unless the council provides for payment of main sewers in whole or in part by the city or by the owners of the abutting lots. Sec. 925 — 216 as amended (Laws of 1901, eh. 215, sec. 1: Supp. 1906) provides that not more than $2 per linear foot of frontage shall be assessed against any lot; and sec. 925— 218, Stats. (1898), provides that the cost of all sewers in street and alley crossings and the excess of $2 per linear foot, catch-basins, and construction of sewers not provided for by special assessment shall be paid out of the fund of the proper sewerage district; also provides that the cost of constructing main sewers within the city or extending beyond may be paid in whole or in part by the city out of the general fund or out of the funds of the proper sewerage district, or by abutting property. Secs. 925 — 231, 925 — 232, and 925 — 233 provide for the filing of plans of sewerage for the several districts, and provide that such plans may be changed from time to time as occasion or the exigencies may demand, and that when changes have been determined upon, if such changes render useless any existing sewers the expense of such change — 511 — shall be paid out of the general fund. See. 925 — 239 provides that in ease the council shall decide to amend its system or adopt a new one it may proceed in the mode prescribed “in this subchapter or by the law in pursuance of which such sewer or sewers were constructed, ... or in the discretion of the council it may cause the whole cost of such construction, alteration or change to be borne by the city, or to cause such portion of the estimated cost of construction, alteration or change of sewers as it shall designate to be borne by the city and the balance to be assessed upon the lots or parcels of land which may be benefited. ...” We are convinced that the contention of the appellant on the option theory is not tenable, and that subch. XX, upon its adoption by the defendant city, became a part of the city’s charter and all provisions of it continued in full force; and that the adoption of one method of construction and maintaining sewers in no way abrogated the right of the city to avail itself of any other method or of any provision of the subchapter adopted. It is argued by counsel for appellant that if the option theory which they contend for cannot be sustained the law is unconstitutional, because it imposes an unjust burden upon the appellant in that it paid for sewers under the district system as provided by ordinance No. 277, which imposed the burden on appellant of paying for “main and other sewers,” and to compel it to pay for mains under another method would be imposing an unjust and inequitable burden and amount to double taxation, thereby destroying the rule of uni-. formity in taxation, and would be unjust discrimination and violative of sec. 1, art. VIII, of the constitution of the state of Wisconsin, which provides that the rule of taxation “shall be uniform.” We do not regard it necessary to enter into any lengthy discussion upon the constitutionality of subch. XX. Obviously the various provisions relating to the different methods of payment as heretofore construed were designed by the legislature to aid in getting at as equitable a distribution — 512 — of tbe burden as might be, and it does not appear that the law violates any constitutional provision. Some inequity of burdens may result in special assessments under the most perfect law, and some injustice be done, but that is not sufficient to warrant the court in declaring a law unconstitutional. We think the contention is ruled against the appellant by this .court in numerous cases, some of which we cite. Weeks v. Milwaukee, 10 Wis. 242; Warner v. Knox, 50 Wis. 429, 7 N. W. 372; Blount v. Janesville, 31 Wis. 648. It is further insisted by counsel for appellant that there is no authority in law sufficient to warrant payment for any sewers or sewer work, other than for main sewers, out of the general fund, and that the tax is therefore illegal, since it was levied and extended upon the tax roll for the purpose of paying for sewers other than main sewers. This contention is based upon the report of the board of public works, referred to in the complaint, viz.: “That the report of the said board of public works of the city of Oconto hereinbefore referred to and the estimates of the city engineer therein referred to embraced and included not only the construction of main sewers but also the construction of extensions and the rebuilding of branch sewers and the taking up of certain main sewers in the city of Oconto and the relaying of the same with larger and different sewers, as will appear from the said report of the board of public works and from the estimates of the city engineer referred to therein and on file with the city clerk of the city of Oconto, and that the said city of Oconto adopted the said report of the board of public works and the estimates of the said city engineer, and levied the tax in accordance therewith, as here-inbefore alleged.” It is further alleged in the complaint that the sum of $4,014.40 was assessed and levied on the taxable property in the defendant city, including the property of the plaintiff, and was extended on the tax roll and formed and constituted a part of the so-called “contingent fund,” which fund amounts to $14,906.30. Now this point turns upon the proper con — 513 — struction of tbe allegations of tbe complaint above quoted. It is argued that tbe plaintiff alleges that tbe tax levied is not for. main sewers but includes other expenditures. It is flatly alleged in tbe complaint that $4,014.40 is assessed for main sewers. But. it is further alleged that tbe report of tbe board of public works, which was adopted, includes extensions and the rebuilding of branch sewers and tbe taking up of certain main sewers and relaying tbe same with larger and different sewers. There is no positive allegation that any sum other than tbe $4,014.40 was spread upon tbe tax roll or became a cloud upon plaintiff’s property. Nor does tbe allegation that money was included in tbe contingent fund reported for levy by tbe board of public works show that it was for payment of sewers other than main sewers and tbe rebuilding of branch sewers. Tbe extensions referred to in the report were doubtless extensions of main sewers. At least tbe allegations of tbe complaint are capable of tbe construction that nothing was included in tbe report as a tax against plaintiff’s property except taxes for payment of such' sewers. Clearly it does not appear that any sum not chargeable to tbe general fund was assessed and levied upon tbe taxable property of tbe city, including tbe property of tbe plaintiff. It is further insisted that since tbe passage of ordinance No. 318 tbe defendant city is without authority for tbe payment of any except main sewers. There is no allegation in tbe complaint to tbe effect that no ordinance exists authorizing tbe city to proceed with a sewer system. Conceding that ordinance No. 27'7 was repealed by ordinance No. 318, it does not appear that other ordinances did not exist granting tbe authority, nor even that ordinance No. 318 did not give such authority. We conclude that tbe complaint states no cause of action, and that tbe order sustaining the demurrer was right and should be affirmed. By the Gourt. — Tbe order appealed from is affirmed.