Berger v. City of Superior

Viiije, J. In view of the nature of .the action and the allegations of the complaint no fuller statement of the issues litigated is deemed necessary. Plaintiffs, though alleged to be owners of property affected by the proposed improvement, cannot maintain this action by reason of such ownership. Eor any wrong suffered in that capacity they must seek redress through an appeal from the final determination of the city council, provided for in sec. 959 — 30g, Stats. 1915. That is the only remedy they have as owners of property affected by the proposed improvement. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986; Dunn v. Superior, 148 Wis. 636, 135 N. W. 145. As general taxpayers they may maintain a suit in equity to restrain the performance of the contract if it is made to appear that it is invalid and that loss will ensue to the general taxpayers through its performance. But in such suit they are not recognized as standing for any direct interest of their own. They represent only the interests of the general taxpayers. Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813. In the present case plaintiffs allege that the benefits accruing to property affected by the improvement were determined to be $8,100; that the contract price was $6,590.34, and that the whole thereof would be assessed proportionally against the property affected by the improvement. That being so, general taxpayers can suffer no loss. If it be urged that upon an appeal from the final determination of the council the city may be required to refund moneys to the successful appellant, the answer is that no such fact is alleged in the complaint. Before a court of equity will entertain a general taxpayers’ action it must affirmatively appear that, if the allegations of [480] tbe complaint are true, loss to tbe general taxpayers will follow. 4 Dillon, Mun. Corp. (5th ed.) § 1586. Here there is no such showing either by the pleadings or the proof. The trial court, therefore, should have dismissed the complaint upon the merits because it failed to state a cause of action. Since the same result was reached by a trial the judgment must be affirmed. By the Gourt. — Judgment affirmed.