Gleason v. Waukesha Cnty.

• Decision Date: 23 May 1899
• Citation: 103 Wis. 225,79 N.W. 249
• Parties: GLEASON ET AL. v. WAUKESHA COUNTY ET AL.
• Court: Wisconsin Supreme Court

103 Wis. 225

79 N.W. 249

GLEASON ET AL.

v.WAUKESHA COUNTY ET AL.

Supreme Court of Wisconsin.

May 23, 1899.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Suit by M. Gleason and others against Waukesha county and others. There was judgment for plaintiffs, from which defendants appeal. Reversed.

Action to avoid special taxes levied on property of plaintiffs for the expenses of making gas and water connections with water and gas mains and laying pipes from such connections to the curb line of the street in front of such property in the city of Waukesha, Wis., such taxes having been levied pursuant to an attempt by the municipal authorities of such city to comply with subdivision 223, § 925, Rev. St., which provides that: “Whenever the council shall order the paving or repaving of any street in which water, gas mains and sewers or either of them shall have been previously laid or constructed they may also by resolution require water and gas service pipes and house drains to be first laid in such street, at the cost of the property fronting thereon, from the main sewer, water and gas mains in such street to the curb line on either side thereof, at such intervals as the council shall direct, along the whole length of such paved street, except at street and alley crossings, and notice shall thereupon be given to the owners or occupants of the property adjoining such street, by publication thereof for six days in the official paper, requiring them to do such work opposite their respective lots according to plans and specifications to be before prepared and filed in the office of the board of public works, city clerk or city surveyor, as the council shall prescribe, showing the location and size and the kind and quality of material of such lateral sewers or drains and water and gas service pipes; and if such owners or occupants shall refuse or neglect to do the same before the paving or repaving of said street so ordered and within ten days after the publication of such notice, the board of public works or the officer or officers discharging the duties thereof may procure the same to be done and charge and assess the expense thereof to the lots or parts of lots fronting upon such work in the manner provided in and by sub-chapter 18 of this chapter, and the same shall be levied and collected as other special assessments are levied and collected: provided, that no street shall be paved or repaved by order of the council unless the water and gas mains and service pipes and necessary sewers and their connections shall, as required by the council, be first laid and constructed in that portion of such street so to be paved or repaved.” The reasons assigned in the complaint for avoiding the taxes are, first, because notice of the improvements was not given or the connections ordered constructed by resolution of the common council duly adopted, nor were any of the steps required to charge plaintiffs' property with the costs thereof taken in the manner required by the city charter; second, because the city charter provision violates the constitutional inhibition against taking private property for public use without just compensation therefor; third, because the water and gas systems of the city are private property, the owners of which furnish water and gas only upon application of property owners, and that plaintiffs did not request the putting in of the connections between the mains and the street curb line in front of their property, neither did they use or derive any benefit therefrom or have any authority to use the connections without the consent of the corporations owning the water works and gas works systems. The allegations as to all irregularities in the proceedings of the city council, upon which the taxes complained of are based, were put in issue by the answer. On the trial the following facts were established by the evidence: The water works and gas works systems are the property of private corporations. Persons owning lots abutting on streets where the water and gas mains are located can obtain service, either water or gas, only by contract with the corporation owning the main. Plaintiffs are the owners of the property taxed. All the allegations of fact in respect to the taxes are true, except those in regard to failure of the municipal authorities to comply with the city charter in respect to making such taxes a legal charge against such property. The following proceedings were taken for the purpose of making the expense of putting in the gas and water connections a legal charge upon plaintiffs' property: A resolution was adopted by the common council ordering the street to be paved and the city engineer to prepare and file in his office plans and specifications showing the location, size, kind and quality of material of lateral sewers or drains and water and gas service pipes to be thereafter ordered, to the curb line on both sides of the street. The city engineer complied with such resolution and his work was approved by the city council. The board of public works was, by vote of the council, empowered “to force the connections.” The action of the council at this point was evidenced by the record as kept by the city clerk, in the following language: “Plans for connections for water and gas and house drains on Broadway, Clinton, Main and Madison streets, were presented by the city engineer, and on motion of Alderman Dick were approved, and the board of public works empowered to force the connections.” A notice to private owners that they are required to construct or cause to be constructed the water and gas connections in accordance with the plans and specifications on file in the office of the city engineer of the city was given by publication in the official paper of the city for three successive weeks. The notice was signed by the members of the board of public works, stated that the council had ordered the paving of the street, and authorized the board to notify private owners to make the gas and water connections, that notice was given pursuant to such authority, that the proceedings were under section 223, c. 20 of the city charter, that the work was required to be done by the property owners by a day therein named, which, as to length of time, complied with the charter, and that if the work was not done within such time by the property owners, it would be let by contract as provided by law. The property owners failed to do the work and thereupon it was contracted for pursuant to an award made on competitive biddings on public notice, published in the official paper of the city for three successive weeks, that the work would be let. There was no question on the trial but that the contracts were fairly made and the charges for the work and material were just. The court found the facts in favor of plaintiffs, and in respect to the alleged irregularities and jurisdictional defects found that the council, by resolution, ordered the streets paved, and that plans therefor, including gas and water connections, were prepared by the city engineer and adopted by the council, but that the council did not adopt any resolution requiring gas and water connections to be constructed at the expense of the abutting property. The court specially found, in addition, that the gas and water mains were under the control of private corporations and that the city was powerless to make connections therewith except by permission of such corporations, and that the connections were for the benefit of the corporations and not the public. Further, that the work was done against the protest of plaintiffs as regards charging their property with the...