Consolidated Apparel Co. v. Common Council of City of Milwaukee
| Decision Date | 06 June 1961 |
| Citation | 109 N.W.2d 486,14 Wis.2d 31 |
| Parties | CONSOLIDATED APPAREL CO. et al., Appellants, v. COMMON COUNCIL OF the CITY OF MILWAUKEE, Respondent. |
| Court | Wisconsin Supreme Court |
Certiorari proceedings instituted as a class action by the four petitioners, in behalf of themselves and other property owners similarly situated, to have declared invalid and void certain proceedings of the city of Milwaukee for the establishment of off-street public parking lots under which benefits were assessed against the properties of the petitioners and such other property owners.
The circuit court issued the writ prayed for by the petitioners. The defendant then served and filed a motion to quash the writ on the ground, among others, that the petitioners had been guilty of laches in applying for such writ. By order entered December 30, 1960, the circuit court granted the motion to quash, and the petitioners have appealed therefrom. The facts will be stated in the opinion.
Charne & Kops, Milwaukee, for appellant.
John J. Fleming, City Atty., Ewald L. Moerke, Jr., and Harvey G. Odenbrett, Asst. City Attys., Milwaukee, for respondent.
The proceedings by the city for acquiring the land for the off-street parking lots, and for assessing benefits against the properties of the petitioners and similarly situated landowners, were purportedly instituted and conducted under the Kline Law (ch. 275, Laws of 1931, and amendments thereto).
Sec. 10 of the Kline Law authorizes a property owner to appeal to the circuit court from an assessment of benefits or damages by filing a notice of appeal with the clerk of such court within 20 days after the confirmation of such assessment by the common council. Sec. 41 of the act provides that no action at law or in equity to cancel or set aside any assessment of special damages, or to enjoin the collection of such assessment, shall be brought or maintained unless such action be commenced within one year from the first day of January following the year in which such assessment of benefits, or any instalment thereof, is placed upon the tax roll for collection. 1
The appeal provision of sec. 10 of the Kline Law has been construed as only embracing irregularities or illegality affecting the amount of the benefits or damages, and that any action attacking the validity of the entire proceeding must be brought under sec. 41. Lamasco Realty Co. v. City of Milwaukee, 1943, 242 Wis. 357, 385, 8 N.W.2d 372, 865; Perkins v. Peacock, 1953, 263 Wis. 644, 656, 58 N.W.2d 536. Our review of the allegations of the petition herein convinces us that the illegality in procedure therein alleged on the part of the city affects the validity of the entire proceedings under which the off-street parking lots were sought to be established, and is not limited to only the proceedings affecting the amount of the assessment of the benefits. Therefore, the appeal procedure under sec. 10 has no application.
The common council confirmed the report of the board of assessments on June 24, 1958, which is the final action to be taken under the Kline Law for making an assessment of damages and benefits. Pursuant to such action the assessments of benefits were placed on the tax rolls of the following year and December 31, 1959, was the last permissible date for bringing action under sec. 41 to have the entire proceedings adjudicated void. It was not until such December 31, 1959, that the petitioners filed their petition for certiorari, although the first instalments of such assessments were due in January, 1959.
The first question which arises is whether the statutory words 'action in law or equity' appearing in sec. 41 embrace a proceeding in certiorari. In Wurth v. Affeldt, 1953, 265 Wis. 119, 60 N.W.2d 708, 40 A.L.R.2d 1376, we held that a certiorari proceeding was not embraced within the words 'civil actions' or 'actions' appearing in ch. 330, Stats., covering limitations for commencement of various actions. It was further determined therein that this was so even though certain changes were made in sections of Title XXV, which embrace the chapters in the statutes dealing with procedure in civil actions that became effective July 1, 1945. Such changes made certain provisions of such sections applicable to certiorari proceedings. The Wurth case further held that the time within which certiorari proceedings might be brought has by analogy generally been limited to that within which an appeal from a judgment may be taken, citing State ex rel. Dalrymple v. Milwaukee, County, 1883, 58 Wis. 4, 16 N.W. 21, and McClutchey v. Milwaukee County, 1941, 239 Wis. 139, 300 N.W. 224, 300 N.W. 917, 137 A.L.R. 628.
In the later case of State v. Donohue, 1960, 11 Wis.2d 517, 523, 105 N.W.2d 844, we held that by statute in Wisconsin prohibition and other proceedings initiated by original writs are actions and not special proceedings, citing sec. 262.01 (now sec. 262.02), Stats., and 30 W.S.A., p. 9, interpretative commentary under sec. 260.03. Certiorari, being a proceeding which is commenced by service of an original writ, would fall in the same category. However, sec. 262.02 is part of Title XXV, Statutes, and as mentioned above, the Wurth case held that certiorari is not embraced within the term 'civil actions' or 'actions' appearing in ch. 330, Stats., imposing statutes of limitation.
Be that as it may, we are satisfied that certiorari is available to property owners situated as are the petitioners to challenge the validity of the entire proceedings, and so hold. There is nothing contained in sec. 41 of the Kline Law that would have the effect of barring such remedy. We find it unnecessary to determine whether the limitation period of such sec. 41 is applicable to certiorari. This is because, even if applicable, there may be laches on the part of the petitioners in instituting certiorari which will entitle the court to quash the proceeding although the proceeding was instituted within the limitation period of sec. 41.
The writ of certiorari is not one of right, but is granted in the sound discretion of the court. State ex rel. Goldsmith Bldg. Co. v. Bolan, 1951, 259 Wis. 460, 462, 49 N.W.2d 409; State ex rel. Hallauer v. Gosnell, 1903, 116 Wis. 606, 619, 93 N.W. 542, 61 L.R.A. 33; 10 Am.Jur., Certiorari, p. 530, sec. 6; 14 C.J.S. Certiorari § 50, p. 198. In the absence of special statutory provisions it is well settled that, before the court will grant a writ of certiorari, it must...
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