Sayles v. City of Hartford

Marshall, J. It is conceded tbat authority must be found in tbe written law for tbe proceedings wbieb tbe trial court beld to be invalid else tbe judgment must be affirmed, unless it is otherwise by principles of estoppel. Public improvements cannot be legally made especially burdensome upon private property, in tbe absence of legislative authorization and tbe prescribed method being followed in all substantial particulars. Evidently tbe common council of appellant city supposed authority was conferred to do tbe acts complained of by adoption of tbe general charter scheme for constructing sewers. Tbe trial court decided, as tbe fact is, tbat tbe city ordinance in respect to tbe matter only covered eighteen sections of tbe general city charter plan whereas there are thirty-eight of such sections; that the adoption proceedings came far short of an attempt to incorporate all of such plan into the written law of the city, and hence were void. Counsel for appellants make a very ingenious argument to show that error was thus committed, but the question is really not open to discussion. The ordinance discloses, clearly, that there was no attempt to adopt the whole of the general charter plan; that very material parts thereof were omitted. The city had power to adopt substantially the whole, but none to adopt less. So ruled in State ex rel. Boycott v. Mayor, etc. 107 Wis. 654, 84 N. W. 242, and several subsequent cases. The decision below was grounded wholly upon the infirm [140] ity mentioned and want of authority otherwise to levy special assessments for sewer construction. We are unable to find that there was such authority. Our attention is called to sec. 926 — 15,-Stats., providing that in cities of the third and fourth class where the whole or any part of the cost of a sewer is to be paid by special assessments, certain proceedings shall be had. . That does not contain a grant of power, but is a mere regulation of the exercise of power where it exists. Several other sections of the statutes are referred to, but they all refer to methods subsidiary to and in furtherance of power where that exists by some written law. It is suggested that sec. 926a places a limitation of three months after adoption proceedings on the right to judicial interference to challenge their validity, and limits the remedy to direct proceedings. If that term applies to this case it is fatal to respondents. It does not apply. It relates to defects in the exercise of power. The difficulty here is absolute want of power. It is suggested that some of the plaintiffs have used some part of the sewerage system and thereby, in connection with delay with knowledge of the facts, estopped themselves from maintaining this action. The primary difficulty with that is, this is a general taxpayers’ action to enforce the right and duty of the corporation to refuse to pay public money upon an illegal contract. Though a person were precluded by some such conduct as that referred to from use of a judicial remedy to prevent his property from being burdened by a special assessment, the court might still recognize him as competent to invoke judicial power to prevent illegal use of' the public funds. McGowan v. Paul, 141 Wis. 388, 123 N. W. 253. A city cannot be estopped by laches of individual taxpayers, neither can all taxpayers of a city be estopped by the conduct of some of them. This action was to vindicate the right of the city as an entity and that of taxpayers in general. An individual taxpayer might take such a course as to be unworthy of recognition as standing for the municipality [141] or for all taxpayers; but there was no conclusive showing of that sort in this case. Serious complaint is made because the judgment was extended so as to nullify certificates, if any existed, issued against respondents’ abutting property and that of others not appearing and complaining; That concerns mere individual rights. However, we see no reason why the court could not properly deal with such rights as to the parties of record, notwithstanding the primary right involved is, as to them, as before indicated. We are unable to see any clear case of estoppel from ashing relief as to their private rights. They protested against the particular sewer being constructed at public expense, or partly that and partly at the expense of abutting property. As soon as it appeared that such protest would not be honored this action was commenced. Substantially no work had theretofore been done and none was done thereafter except what was necessary to restore the street. Respondents have occupied an adversary status from the first as to such particular sewer. It may be that the judgment went too far in nullifying special assessments as to persons not actually before the court and complaining. They may have been willing to have their property burdened for the purposes of the sewer. Respondents answer that by saying that, no such certificates were issued and the judgment was not intended to prevent payment for work actually done nor interfere to prevent abutting owners from submitting to special assessment if they saw fit. With that concession it seems that the judgment should be so construed and restrained as not to go further than the proper scope of a taxpayers’ action and to restrain enforcement of special assessments against the property of the persons before the court and complaining. By the Oourt. — The judgment appealed from is construed and restricted as stated in the opinion, and as so construed and restricted it is affirmed.