Hennessy v. Douglas Cnty.

• Decision Date: 12 April 1898
• Citation: 74 N.W. 983,99 Wis. 129
• Parties: HENNESSY v. DOUGLAS COUNTY ET AL.
• Court: Wisconsin Supreme Court

99 Wis. 129

74 N.W. 983

HENNESSY

v.DOUGLAS COUNTY ET AL.

Supreme Court of Wisconsin.

April 12, 1898.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by David J. Hennessy against Douglas county and another. Judgment for plaintiff, and defendants appeal. Affirmed in part and reversed in part.H. C. Sloan and H. H. Grace, for appellants.

Knowles & Wilson, for respondent.

PINNEY, J.

The plaintiff, the owner of a large number of vacant and unimproved lots in the city of Superior, brought this action to set aside various tax certificates of sale belonging to the county of said lots for general taxes for different years, on the ground of illegality of the assessments for the years in which the taxes were imposed, whereby his property had, as he alleged, been subjected to an excessive burden. The action was also brought to set aside various special assessments for street improvements, sewers, and sidewalks, alleged to be illegal and void. The answer denied the allegations of the complaint specifically, and alleged that all such proceedings, taxes, and assessments were regular and valid. The defendants pleaded the several bars and statutes of limitations contained in the city charter, and the limitation of one year prescribed by section 1210h, Sanb. & B. Ann. St. At the trial it appeared that the general assessments for the years 1892 and 1893 should be set aside, and, to avoid the necessity of reassessment for those years, certain computations and stipulated reductions were made, whereby certain sums were to be paid by the plaintiff as a condition of relief as to said general taxes and tax certificates, and all questions in relation thereto were thus eliminated from the case.

By the final judgment appealed from by the defendants the court set aside certain street-paving taxes, namely, the P street paving taxes, the West Fifth street paving taxes, the West Seventh street paving taxes, certain sewer taxes, and certain sidewalk taxes. The appellants assign for error the decision of the court setting aside the said special taxes and assessments, insisting that they should have been sustained. The court found, among other things, that all notices and orders required by the charter to be published or posted in relation to said proceedings, and set forth in the findings, were duly and regularly published, and all proceedings relating to said taxes and assessments, except as set forth in said findings, were and are legal, valid, and sufficient; and that no other evidence had been introduced or objections urged to set aside said special taxes or assessments, except as so shown and set forth. The special assessments for improvements by paving streets involved are for such improvements on P street, West Fifth street, and West Seventh street. The points in relation to said assessments are substantially the same, and the plaintiff contended that they were all made in the same manner, and had a common vice, namely, that in each case the whole amount of benefits assessed for the entire improvement had been divided by the number of feet fronting on the improvement, and that the benefit to each front foot so found, multiplied by the number of front feet on each parcel, produced the benefit which was assessed against such parcel, and that it nowhere appeared that the board which made the assessment had considered and passed upon all questions made material by the statute; that nothing was shown upon the face of the proceedings to indicate that the result at which the board of public works had arrived was other than that the assessments were according to the front-foot rule, and that they were therefore the same in substance as in the case of Hayes v. Douglas Co., 92 Wis. 429, 65 N. W. 482, and were void under that decision. These assessments were made under the charter of 1891, differing in its provisions from the charter of 1889, under which the decision in Hayes v. Douglas Co. was made. Section 117 of the charter provides that the “opening, grading, paving or improvement of any street shall be chargeable to the lots or parcels of land benefited thereby in proportion to the benefits secured thereto.” It is provided by section 119 that “before any established grade shall be changed, or any work shall be ordered done, on any streets in whole or in part at the expense of the abutting or adjacent real estate, the board of public works shall view the premises and determine the damages and benefits which will accrue to each parcel of real estate by such change or alteration of grade; the entire cost of the contemplated work or improvement on the street; the benefits and damages that will accrue to the several parcels of such real estate by such work and improvement, and the amount that should be assessed under the provisions of this chapter to each parcel of such real estate to be benefited as benefits accruing thereto by such contemplated work or improvement.” The board is required to make and file in their office a report showing their determination of the questions required to be considered by them under the provisions of said section; and it is provided by section 121 that notice shall be given by said board by publication in the official newspaper of the city at least once in each week for two successive weeks; that such report is open for review at their office, and that on a day and hour named therein the board will be in session to hear all objections that might be made to said report; that no irregularity in the form of said report or of said notice should affect the validity of the same, if it fairly contained the information required to be conveyed thereby. At the times specified the board is required to hear all parties interested who might appear for that purpose, and should reduce to writing all objections that might be made, and all evidence that might be offered, to sustain the same, and should have power to review, modify, and correct said report as they should deem just, and thereupon a complete and final report shall be made and filed with the city clerk, together with all objections and evidence taken before them to sustain the same, with proof of publication of the said notice; that no irregularity in the form of the report or manner of conducting the proceedings of the board should affect the legality of such report. The city clerk was required to file the same, and at the next meeting of the council thereafter to notify the council thereof, and that the council might take such action on the same as it might deem advisable. If no action was taken by the council, the report should be deemed confirmed. Section 123 provides that, subject to the limitations mentioned, the common council, through the board of public works, “may determine the amount to be paid by the real estate to be benefited as benefits on account of the improvement of the street, and the amount that should be paid by the city at large.” Section 124 provides that when the report of the board of public works, as made by them, or as changed or modified, has been confirmed, the city clerk shall publish notice in the official newspaper of the city once in each week, for two successive weeks, that a final determination has been made as to the damages that will accrue to the real estate abutting on the street, in case of change in the establishment of the grade, or the benefits to be assessed to the real estate to be benefited in case of any proposed improvement: provided, that, in case the contract was let for less than the whole amount of the benefits assessed, the board of public works might reduce the same to the actual cost of the work. By section 125 the owner of any parcel of land mentioned in such notice, feeling himself aggrieved by reason of the determination made, might appeal within 20 days thereafter to the circuit court, and provision was made for the trial and disposition of said appeal. By section 126 it was provided that the appeal given by section 125 from the report of the board of public works, as confirmed by the common council, should be the only remedy of the owner of any parcel of land, or any person interested therein, affected by said improvement, for the redress of any grievance he might have by reason of making such improvement, or by reason of the change of any established grade covered by said report. The preliminary report of the board of public works in the matter of the P street improvement was that, in compliance with the resolution passed by the common council, May 23, 1891, “ordering the board to view the property fronting, abutting, and adjacent to P street, between Bay street and West Seventh street,” to determine the entire cost of paving said street between said points, and, further, to determine the benefits and damages accruing to, and the amount that should be assessed to, each lot or parcel of land benefited by reason of such improvement, on the 18th day of June, 1891, they did view the said property, and had determined the entire cost of said proposed improvement, and had further “determined the damages and benefits that would accrue to, and the amount which should be assessed as benefits to, each said lot, piece, or parcel of said real estate by reason of said proposed improvement; that their determination upon all of said matters was fully set forth in the schedule thereto attached.” The final and corrected report was made July 9, 1891, reciting the reference to the board of public works; stating, also, that they had viewed the premises fronting, abutting upon, and adjacent to P street between the points named; and determined the entire cost of paving and otherwise improving the said street, and the benefits and damages accruing to, and the amount that should be assessed as benefits against, said property benefited between said points by reason of said proposed improvements. It recited, also, that they had viewed the said premises on the 18th of June, 1891, and had on...