Boyd v. City of Milwaukee

• Decision Date: 10 March 1896
• Citation: 92 Wis. 456,66 N.W. 603
• Parties: BOYD v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 456

66 N.W. 603

BOYD

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

March 10, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Sarah M. Boyd against the city of Milwaukee and others. There was an order for plaintiff, granting an interlocutory injunction, and defendants appeal. Affirmed.

This is an action to set aside a special assessment against plaintiff's property for the laying of an asphalt pavement in front thereof. The plaintiff owns a piece of land 90 feet in width, fronting on Grand avenue, in the city of Milwaukee; and in the year 1894 the city made a contract with the appellant the Western Paving & Supply Company to lay an asphalt pavement, resting on a concrete foundation, on said Grand avenue, for several blocks, including that part of the avenue in front of plaintiff's property. The pavement was laid, and a portion of the cost assessed against the plaintiff's property, and a certificate issued to the supply company for such assessment. Prior to the sale for taxes this action was brought to perpetually enjoin the sale and set aside the tax, and upon the complaint an order to show cause was issued and served, why there should not be an injunctional order pendente lite. The allegations on which it was claimed on the hearing of this motion that the assessment was illegal and void were, in brief: (1) That, the street having once been paved, there could be no legal assessment for repaving it, but that the cost of repaving must, under the city charter of Milwaukee, be paid out of the ward fund. (2) No petition of property owners was presented to have the street repaved, and no sufficient resolution was ever passed by the council by which such paving could be done without a petition. (3) The contract for paving provides that the contractors will keep the pavement in good order and repair for five years; thus charging property owners with the cost of street repairs, when the charter provides that street repairs shall be paid out of the ward fund. (4) A small park, 42 feet in width and 700 feet in length, exists in the center of Grand avenue, in front of plaintiff's property; and the plaintiff has been assessed for the paving of the whole roadway between the curb and said park, whereas the city charter provides that the expense of paving to the middle of the street, adjacent to public grounds, shall be paid from the ward fund. The defendants appeared on the hearing, and filed affidavits in opposition to the motion; but the injunctional order was granted pendente lite, and from this order the defendants have appealed.F. M. Hoyt and Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Howard & Mallory, for respondent.

WINSLOW, J. (after stating the facts).

The objections to the validity of the assessment in question will be taken up in the order indicated in the foregoing statement of facts.

1. It is true that the complaint shows that this street in front of plaintiff's property was, in the year 1876, graded and paved, pursuant to the direction of the city authorities, at the expense of the abutting lot owners. It is also true that the charter of the city (section 2, subc. 7, c. 184, Laws 1874, as amended by section 5, c. 388, Laws 1889) provides that, when a street has been once so graded and paved at the expense of abutting lot owners, the expense of repaving thereof shall be paid out of the ward fund. Had there been no change made in the law, this objection would certainly be fatal. It is provided, however, by chapter 310 of the Laws of 1893, that whenever, in any city having a population of 20,000 inhabitants or more, the grading, paving, or repaving of any street with a permanent paving, having a concrete foundation, shall have been duly authorized, and assessments therefor made, abutting property shall not be exempt from assessment for benefits on account of such paving until such property shall have paid in the aggregate, in assessments for pavements, the sum of three dollars per square yard for all that part of the roadway directly in front of such property, and lying between the curb line and the center of such roadway of said street. If this is a valid law, it undoubtedly operates to amend the charter of the city of Milwaukee, and to change that provision of the charter which precluded assessments for repaving. We think the law is valid. It is argued that it is not a general law, but is special legislation, and in violation of subdivision 9 of section 31 of article 4 of the constitution, which prohibits special or private legislation for incorporating “any city, town or village, or to amend the charter thereof.” Within the rules laid down in Johnson v. City of Milwaukee, 88 Wis. 383, 60 N. W. 270, we think that it is a general law, because it is legislation for a class of cities which may reasonably be said to require legislation peculiar to itself. The classification of cities which was upheld in that case was a classification into two classes, viz. those having a population of 3,000 or more, and those not having such a population. The reasoning upon which the law in that case was sustained applies with equal force in the present case. We construe the law as applying to all cities which shall attain a population of 20,000, as soon as they reach that population. We conclude, therefore, that the law is a general law, and valid so far as the provisions bearing on the controversy in this action is concerned. Being valid, it operates as an amendment of the charter of Milwaukee, so far as to authorize assessments of benefits for repaving to the center of the roadway in front of plaintiff's property.

2. We shall spend but little time on the second objection. It is true that no petition of property owners was ever presented for the laying of the pavement, but it is also true that the charter provides that paving may be done in the absence of a petition, upon the passage of a resolution by the common council declaring why it is necessary to proceed without a petition. Such a resolution was passed, declaring the street to be unsafe for public use, and that it was necessary to proceed without petition, because the property owners had failed to make said street in a safe and suitable condition for the public use, and had failed to present to the council a petition therefor. We regard the reason stated as entirely sufficient.

3. We come now to the most serious question in the case. It appears by the affidavits that the specifications for the paving adopted by the city provide as follows: “Guaranty. The contractor will be required, without additional compensation, to keep in good order and repair all the work done under these specifications and contracts for a period of five years (5) from and after the date of its completion, and to guaranty that during that period neither the municipal authorities or property owners shall be at any expense whatever for any repairs made necessary on account of any defective workmanship or material, or other reason, excepting where the same has been caused by cutting through the pavement for the laying or repairing of sewers, drains, gas, water, or electric service pipe, or other work authorized by the board of public works, and that the pavement shall be in good condition and repair at the end of said period, and there...