Bekkedal v. City of Viroqua

• Decision Date: 15 January 1924
• Citation: 196 N.W. 879,183 Wis. 176
• Parties: BEKKEDAL v. CITY OF VIROQUA, AND TWELVE OTHER CASES.
• Court: Wisconsin Supreme Court

183 Wis. 176

196 N.W. 879

BEKKEDAL

v.CITY OF VIROQUA, AND TWELVE OTHER CASES.^a1

Supreme Court of Wisconsin.

Jan. 15, 1924.

Appeal from Circuit Court, Vernon County; E. C. Higbee, Judge.

Separate actions by M. H. Bekkedal, by John R. Spellum, by C. E. Mullen, by G. A. Groves, by Ella B. Wise, by John Weber, by Sophia Wise, by John Connor, by John Devlin, by Fred Slade, by the Viroqua Milling Company, by W. H. Clark, and by N. H. Nelson, against the City of Viroqua, to set aside a special assessment for street paving. From judgments confirming a second reassessment, and requiring the amounts thereof to be paid into court within 10 days, plaintiffs appeal. Reversed with directions.

Special assessment. From judgments entered by the circuit court for Vernon county, confirming a second reassessment, and requiring the amounts thereof to be paid into court within 10 days, the plaintiffs appeal. The facts as they appear in relation to the Bekkedal Case will be stated in the opinion. The facts in the other cases are substantially the same except as to amounts.C. W. Graves and J. Henry Bennett, both of Viroqua, for appellants.

Schubring, Ryan & Petersen, of Madison, for respondent.

ROSENBERRY, J.

The city of Viroqua is a city of the fourth class, containing a population of less than 10,000, and is governed by the provisions of the general charter law (chapter 62, Wis. Stats.) By subsection (2) of section 62.16, the city council is authorized to establish the grade of all streets and alleys, and it is further provided:

(2) (b) “No street shall be worked until the grade thereof is established and recorded in the manner herein set forth.”

Subsection (4) of section 62.16 provides:

“The city may cause streets to be opened, improved, swept, sprinkled and cleaned. The expense of such work or improvement may be paid in whole or in part by the city or by the property to be benefited thereby as the council shall direct, but in no case shall the amount assessed to any parcel of real estate exceed the benefits accruing thereto by such improvement, except in the case of sidewalks. * * * No street shall be improved where the expense exceeds five hundred dollars except upon the vote of two-thirds of all the members of the council, unless the owners of more than one-half of the frontage of the lots upon that part of any street to be improved shall petition the council to improve such street or part of street. * * *”

On April 25, 1922, the following resolution was introduced in the council and passed unanimously:

“Be it resolved by the common council of the city of Viroqua that the following streets in said city of Viroqua be improved with a permanent pavement, curb and gutter, to wit: East Decker street from Main street to Wisconsin avenue; East avenue from Decker street to Railroad avenue and on Railroad avenue from East avenue to the railroad right of way; and that said work be let to the lowest responsible bidder.

Be it further resolved that the board of public works prepare and report to the council detailed plans and specifications therefor as provided by section 62.16, subsection 5-a.”

By virtue of the provisions of section 62.14, the powers of the board of public works are, in the city of Viroqua, exercised by the common council. Pursuant to the direction contained in the resolution adopted April 25, 1922, the board of public works reported that--

“We have determined that the entire costs of said improvement, including a reasonable sum for engineering, inspection, and details, will be the sum of $40,000. We further report that we have carefully viewed and examined the entire territory and the several parcels of real estate affected by said work and improvement, and from and upon such view and examination have determined the damages and benefits that will accrue to the several parcels of real estate by reason of such work and improvement, the damages and benefits that will accrue to the several parcels of real estate by reason of any change of grade, and the amount that should be assessed to each parcel of real estate, and the benefits accruing thereto by such contemplated work and improvement.”

Attached to the report, there was an assessment from which it appears that upon the property of the plaintiff net benefits will accrue by such contemplated work and improvement to the amount of $6,520 in the aggregate, and the amount to be assessed to said parcels of real estate is $6,213.

On May 31, 1922, the common council adopted a resolution to the effect that--

“The type of pavement for East Decker street to Wisconsin avenue, from East Decker street north on East avenue to Railroad avenue and east on Railroad avenue to railroad right of way, be a single course reinforced concrete pavement.”

The contract was dated May 23, 1922, the work to be done in accordance with the plans and specifications referred to in the contract as being on file in the office of the city clerk. The bid was on a unit basis. The work was thereupon proceeded with.

On the 24th day of July, 1922, M. H. Bekkedal appealed from the determination of the common council determining the benefits and damages to be assessed to the circuit court of Vernon county. The cause was heard and--

“The court, after the introduction and consideration of the evidence submitted, bearing upon the validity of the assessment of benefits and damages, being of the opinion that said assessment was invalid and defective, for reasons then orally stated and in a memorandum filed herein, excused the jury from further consideration of the case,”

and ordered the proper authorities of the city of Viroqua to make a new assessment of benefits and damages in accordance with the provisions of the statutes of the state of Wisconsin, and action was stayed until such new assessment of benefits and damages should be made. A new assessment was thereupon proceeded with. Objections were made by the appellant to the new assessment, and after the new assessment had been made and confirmed by the council and return thereof was made to the court of all the proceedings had under and pursuant to said reassessment, the court thereupon heard and tried the issues raised by the objections of the plaintiff, and found that upon the reassessment the sum of $1,194, had been included and assessed as a benefit against the property owners, which sum was properly chargeable to the city of Viroqua. Proceedings were again stayed, and the proper authorities of the city of Viroqua were ordered to make a new assessment of benefits and damages--

“in accordance with the provisions of the Statutes of the state of Wisconsin in such case made and provided, and on the basis of the actual cost of said pavement, less the cost of the pavementfor the street intersections, as provided by law.”

The plaintiff then objected to the second reassessment, and, upon return being made to the circuit court, and the court having tried the issue made by the objections to the second reassessment, an order was entered confirming the assessment against the plaintiff in the sum of $4,502.05, which amount “the appellant ought justly to pay, and which should be justly and equitably assessed against the said parcels of real estate,” and the plaintiff was ordered to pay into court, within 10 days from the filing of the order of confirmation, the amount of the assessment. If the amount was paid into court by the terms of the order, the appellant (plaintiff) was to have judgment against the city of Viroqua for his costs, but if said amount was not paid into court then the action of the appellant (plaintiff) was to be dismissed with costs, and the objections made by the appellant were overruled. The amount was paid, and judgment was accordingly entered, confirming the assessment and awarding the plaintiff costs in the sum of $132.58, from which judgment plaintiff appeals.

It also appears that by an ordinance published June 18, 1907, the common council of the city of Viroqua ordained as follows:

“That all streets, in the city of Viroqua, except Main street, be worked, graded, and improved for travel, for a distance of thirty feet, in the center thereof between curbs, and that the distance between curbs without regard to the width of the street be and the same is hereby fixed at thirty feet, and that the remaining portion of the street between such curb lines so fixed, and the lot lines of adjoining private property be equally divided between such abutting properties and used for purposes of sidewalks, shade trees, and boulevards.”

The plaintiff objected to the second reassessment upon several grounds. The principal contentions of plaintiff are: (1) That the common council never acquired jurisdiction to assess benefits to the lot owners; (2) that it is a condition precedent to any jurisdiction to improve a street that the grade of the street be first established; (3) that plaintiff was entitled to a jury trial; (4) that the order requiring the plaintiffs to pay the amount of the assessment as finally confirmed deprived plaintiffs of their rights under section 62.21 of the 30 days' election, whether they would pay or not (section 75.56), and is arbitrary and illegal; (5) that the street was improved to the width of 42.2 feet, in violation of the ordinance adopted in 1907; (6) that the assessments are discriminatory and exceed the actual cost of the improvement.

[1] It seems incredible that there could be so many deviations from a procedure clearly and plainly marked out in a single section of the Statutes, as appears in this case. It is conceded that the first assessment was void. It was so found by the circuit court, and no appeal is taken from that determination. It is earnestly contended by the plaintiff that, the first assessment being invalid, and the council having no jurisdiction, there can be no valid second assessment. It is argued that, no petition having been filed, it was the duty of the council to determine by resolution under the...