Dahlman v. City of Milwaukee

• Decision Date: 29 January 1907
• Citation: 110 N.W. 483,130 Wis. 468
• Parties: DAHLMAN ET AL. v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

130 Wis. 468

110 N.W. 483

DAHLMAN ET AL.

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Jan. 29, 1907.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Mary Dahlman and Marie V. Dahlman against the city of Milwaukee and others. Judgment against the city of Milwaukee, and it appeals. Affirmed.

Appeal from the circuit court for Milwaukee county.

Action to enjoin the sale of land for nonpayment of a street improvement tax.

The city of Milwaukee, which imposed the special tax, and the owner of the certificate, C. Beck, who did the work as contractor, were joined as defendants. The claim of the plaintiffs was that the assessment was invalid because made on an arbitrary basis of $6.00, per front foot for benefits regardless of damages, the assessing board well knowing, as the fact was, at the time of making the assessment that the contemplated improvement would result in making a deep cut in front of plaintiffs' property greatly damaging the same, while the law only permitted the cost to the excess of benefits accruing to the property over damages thereto to be charged against such property.

The allegations of the complaint appear with sufficient detail for a full understanding of the case by the abridgment of the findings hereafter referred to.

The city answered the complaint putting in issue all the allegations as to the claim above mentioned and pleaded the pendency of an action at law between plaintiffs and the city in the circuit court for Milwaukee county to recover damages alleged to have been caused to plaintiffs' property by the alleged unlawful improvement.

The defendant Beck answered by way of cross complaint and prayed that in case of the tax being declared void that a reassessment should be made under chapter 354 and chapter 276, pp. 572, 432, Laws of 1903, and that the difference between the amount of the void certificate and the proper amount chargeable to the plaintiffs' premises on account of the improvement should be adjudged in defendant's favor against the city. The latter did not plead to such cross complaint.

Omitting formal matters and those which are not in controversy or are not necessary in deciding the case, the facts as determined by the court are substantially as follows: The city of Milwaukee had authority by its charter to improve the street in question in a prescribed manner. The defendant, C. Beck, duly contracted with the city to improve such street as alleged in the complaint. March 10, 1902, for the purpose of a foundation for making the improvement the board of public works of such city submitted to its common council, a resolution to grade and macadamize the roadway, pave the gutters and grade, curb and plank the sidewalks on National avenue, the street in question, from Washington ave. to 34th ave. in the 23d ward of said city, which was referred to the local committee of the ward. Subsequently it was amended by substituting the word “30th Ave.” for “34th Ave.” and adopted. The engineer's estimated cost of the improvement in front of plaintiffs' property was $4,239.12, and the actual cost was $5,062.92. There was issued to the contractor a certificate against the premises for $4,250.00, and one against the ward fund for $812.92. The estimated cost of the improvement throughout its whole course varied from $96.15, to $231.75, for a 30.1 foot lot. June 30, 1902, the board of public works aforesaid transmitted to said common council duplicate assessments of benefits and damagesfor making the improvement as set forth in the complaint, showing that such benefits were assessed by the frontage rule instead of according to the excess of benefits over damages as to each parcel of land. On said day the assessment was confirmed by said council and is the sole basis for the tax in question. Plaintiffs' premises are on the crest of a natural elevation. The surface of the east line is 6.69 feet and at a point 337 feet west 53.1 and at the west line 0.6 feet above the sidewalk level, which level at a point 37 feet west of the east line of the premises is 3.15 feet and at a point 300 feet west thereof 5.55 and at the west line 2.15 feet above the roadway. The established grade of the street in front of such premises is from 5 1/2 to 16 1/2 feet below the natural surface thereof and of said premises. To grade such premises, so as to make them conform to the grade of the street, back from the street line 150 feet would cost more than $5,200.00. The city was benefited by the improvement to the extent of the cost thereof. The certificate issued to the contractor is now owned by him. It was issued on the uniform basis of $6.00, per front foot, that being the basis of assessments along the whole street so far as the same was improved. The board of public works in making the assessment did not consider the benefit and injury which might result to each lot or parcel of land from the improvement, nor consider nor determine the effect of the improvement as to each lot separately, nor the cost thereof, nor consider and assess the benefits and injuries or either of them as to each parcel of land as a separate matter. The assessment was based on the estimated cost of the entire work as if each parcel of land was equally affected.

From such findings the conclusion was reached that the special tax for want of a proper assessment of benefits and damages as to plaintiffs' premises was void, and that defendant Beck was entitled to receive of the defendant city by way of a special assessment against plaintiffs' premises such part of $4,250.00, as should be by due proceedings to that end determined to be legally chargeable thereto and to receive of the defendant city the balance of said sum with interest upon the whole of such sum from the time the same was payable to said Beck, to wit: November 24, 1904, and that the final judgment should declare the certificate for $4,250.00, void and award plaintiffs full costs, and that further proceedings should be stayed to wait the result of a new assessment of benefits and damages according to the statutes on that subject, which was ordered to be made forthwith.

An interlocutory judgment was rendered accordingly.

A new assessment of benefits and damages was thereafter made as ordered by the court, which was confirmed by the common council of the defendant city and conceded by plaintiffs to be regular, though excepted to by them as to the damages to the premises as determined.

The court, upon such new assessment of benefits and damages being completed and confirmed as aforesaid and proof thereof being duly made, filed final findings in harmony with the preliminary decision, and further to this effect: According to the reassessment of benefits and damages to which no objection is made by plaintiffs going to the regularity thereof no benefits accrued, or were assessable to the plaintiffs' premises by reason of the improvement of the street in front of their premises.

Judgment was accordingly ordered decreeing the certificate issued to defendant Beck on the first assessment void and requiring it to be delivered up for cancellation, awarding him $4,250.00, against the defendant city with interest thereon from November 23, 1904, and awarding plaintiffs full costs against said city, and said Beck full costs likewise. Such judgment was duly rendered from which this appeal was taken.

John T. Kelly, City Atty., and Clinton G. Price, Asst. City Atty., for appellant.

Turner, Hunter & Goff, for respondents.

MARSHALL, J. (after stating the facts).

The primary right claimed by plaintiffs is that their property was not legally chargeable with the improvement tax which, in form, was imposed thereon and a certificate issued therefor and delivered to respondent. The principal defendant necessarily was the city of Milwaukee, it being the factor in imposing the tax and in enforcing the same, to the plaintiffs' injury by a sale of the property. Respondent Beck, as the owner of the tax claim, was a proper, if not a necessary, party defendant. It would seem that since the city, in case of plaintiffs prevailing, could not proceed to enforce the tax for the benefit of Beck that he was a necessary party. If he had not been joined in the first instance it is quite clear that it would have been the duty of the court to order him brought in under the mandatory rule of section 2610, Rev. St. 1898, which provides that “when any persons not parties to the action have such interests in the subject-matter of the controversy as to require them to be made parties for their due protection, the court shall order them to be brought in.” As this court has previously, in principle, decided, had Beck not been made a party at the outset or before trial, it would have been improper for the court to proceed to final judgment declaring the improvement certificate void without ordering him brought in, and the order being obeyed whether either of the parties moved the court to that end or not. McDougald v. New Richmond Roller Mills Company, 125 Wis. 121-129, 103 N. W. 244.

The scope of the court's power when a person is properly, or necessarily joined with the main defendants in a suit in equity is covered by sections 2656a and 2883, Rev. St. 1898. The first section provides “A defendant * * * may have affirmative relief against a codefendant, or a codefendant and the plaintiff, or part of the plaintiffs, or a codefendant and a person not a party, or against such person alone, upon his being brought in; but in all such cases such relief must involve or in some manner affect the contract, transaction or property which is the subject-matter of the action.” It further provides that the relief may be demanded in the answer or by cross-complaint, and for service of the pleading upon the codefendant against whom the relief is demanded, and that unless affirmative relief shall have been so claimed by a pleading so served none shall be adjudged. The latter section...