Parkes v. City of Milwaukee

Winslow, C. J. The language of the complaint must he construed as meaning that the work of macadamizing the roadway had been completed according to the contract, but that the work of building sidewalks and gutters was not completed at the time the certificate in question was issued. This being the case, only two questions arise upon the demurrer: (1) Does the law require that the entire work for which the original assessment of benefits was made be let in one contract ? and (2) If two contracts be made, each covering a separate part of the whole work, can a certificate be legally issued to one contractor and the amount thereof placed on the tax roll while the work of the other contractor remains unfinished? As to the first question, while the charter says that the board shall enter into “a contract” for the work, we are not referred to any provision of the city charter which specifically requires the "letting of the entire work to one contractor, nor does there seem to be any persuasive reason why it should be so held. On the contrary, the argument seems the other way. Where, as here, there are two different kinds of work to be done, namely, macadamizing and construction of cement work, it may very well be that the city could obtain considerably better terms by contracting directly with a contractor in each special line of work for that part of the work which is in his line. It was directly held in Wright v. Forrestal, 65 Wis. 341, 27 N. W. 52, that the charter of Milwaukee (the provisions of which at that time' were much the same as now) did not direct that such improvements be let by one contract. We have no difficulty in holding that the first question must be answered in the negative. As to the second question different considerations apply. The original assessment was made by the board of public works in a single sum for the entire work, and represented the amount which in their judgment would be added to the value of the property by the completion of the entire scheme of improvement. They determined that the property would be [87] improved to the amount of $375 by the completed paving, guttering, and sidewalking. They did not determine that it would be benefited in any part, of that sum by the paving alone nor by the sidewalk alone. We think, therefore, that it was contemplated that the entire work should be completed before the assessments went into the.tax roll and their payment became compulsory. But these considerations do not necessarily mean that the complaint states a good cause of action in equity. Under the provisions of the charter no more than $375 could be collected of the plaintiffs in any event, therefore when the sidewalk and gutter were completed the certificate issued to the sidewalk contractor against the plaintiffs’ property could not exceed $33.61. If the sidewalk and gutter, therefore, are completed according to the contract, the plaintiffs will simply be required to pay their assessment of $375 for the whole completed work. There is no allegation in the complaint which shows or suggests even the probability that the gutter and sidewalk contract will not be completed in accordance with its terms. It had been let to a contractor whose solvency is not questioned, was in process of completion when the complaint was drawn, and there is no suggestion that there will be any failure in carrying it out. Under these circumstances the rule that mere irregularities in the proceedings which do not affect the substantial justice of the tax will not be ground for setting it aside must be applied, and when applied renders it plain that the complaint states no cause of action in equity. As to the motion to dismiss the complaint under the provisions of ch. 295 of the Laws of 1909 (secs. 1210/i — 1 to 12107¡. — 4, Stats.), it seems to us very clear that the motion was rightly denied, but not for the right reason. The act provides, in substance, that in any action brought to set aside any tax “for any error or defect going to the validity of the assessment and affecting the groundwork of such tax,” the [88] plaintiff shall •within twenty days after the commencement of the' action pay to the proper treasurer the amount of the taxes, interest, and charges in dispute as a condition of maintaining said action, and shall he entitled to recover hack the excess which he so pays over and above the amount which it is finally adjudged that he should have paid with interest. The act does not apply to this case, because, even conceding that the assessment here was prematurely carried on to the tax roll, it cannot he said that the irregularity affected “the groundwork of the tax.” These last named words are quite vague and not easy of accurate definition, hut they certainly do not include any such irregularity as is claimed here. They refer to some serious jurisdictional defect, not mere irregularities in the details of the proceedings after jurisdiction is properly acquired. Such being the case, the act has no application here, even if it should he held to cover special assessments, a question concerning which there may he considerable doubt, hut which we do not decide. We do not, therefore, reach the question of the constitutionality of the law, and we express no opinion upon it. It seems proper, however, to observe that the trial judge based his conclusion that the law is unconstitutional upon the case of Philleo v. Hiles, 42 Wis. 527, and other cases of like character, and that the extreme doctrine of this line of cases has been much modified by the more recent decisions. Hixon v. Oneida Co. 82 Wis. 515, 52 N. W. 445. By the Court. — The order overruling the demurrer is reversed, and the order overruling the motion to dismiss is affirmed, and the action is remanded with directions to sustain the demurrer to the complaint; appellant to recover no costs except clerk’s fees of the court.