State ex rel. Gray v. Common Council of Oconomowoc

• Citation: 80 N.W. 942,104 Wis. 622
• Parties: STATE EX REL. GRAY v. COMMON COUNCIL OF CITY OF OCONOMOWOC.
• Decision Date: 24 November 1899
• Court: Wisconsin Supreme Court

104 Wis. 622

80 N.W. 942

STATE EX REL. GRAY

v.COMMON COUNCIL OF CITY OF OCONOMOWOC.

Supreme Court of Wisconsin.

Nov. 24, 1899.

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

Certiorari on the relation of Robert Gray against the common council of the city of Oconomowoc. From various orders, relator appeals. Dismissed in part, and affirmed in part.

The relator sought, in the circuit court for Waukesha county, to review the proceedings of the common council of the city of Oconomowoc to make contract for sprinkling of a portion of Summit avenue at the expense of benefited abutting owners. The charter provides that: “Whenever a petition is presented to the common council of said city, signed by at least a majority of all the taxpayers within the boundaries set forth in said petition * * * whose aggregate amount of taxable property shall exceed one-half of all such property within the bounds designated, as appears from the last assessment roll of said city, asking that said street within the bounds so set forth be sprinkled with water,” etc., the council shall have power to contract for sprinkling, and to assess the cost thereof. The defect in the proceedings alleged is that the signers of said petition were neither a majority in number, nor had they a majority in amount of the taxable property within the limits covered by the petition. A writ was issued, commanding the common council to certify “all the proceedings, including the petitions for sprinkling, the records of the common council relating thereto, a certified copy of all the taxable property, and the names of the taxpayers within the boundaries of Summit street between Main street and George street as shown by the last assessment roll of the city of Oconomowoc, and a transcript of all the entries and records and all things touching and relating to such petition and the sprinkling of said Summit street.” The common council returned a certified copy of the petitions and of its records, and further returned, in substance, that upon the receipt of said petitions they and their subject were referred to the standing committee on street lighting and sprinkling; that said committee examined the assessment roll for 1896, and personally investigated as to who were the taxpayers along either side of said Summit avenue between Main street and George street, and found, and so reported, that a majority in number of said taxpayers had signed said petition, and that against the signers more than one-half of the taxable property was assessed; that they kept no minutes of said investigation, the same being a personal examination on their part, and that none are on file with said proceedings or report, which report was favorable, and that thereupon, in accordance with the rules of that body, the common council granted said petitions; that one of the subjects referred to said committee was the question of fact as to who were or were not taxpayers within the limits on said street, and was decided by the committee by personal examination and investigation, which was embodied in their report. The council further returned that it had caused an investigation to be made of the report of said committee, and of the facts investigated by it, and that they returned to the writ a list of the taxpayers at the time of presenting said petition along either side of said street, together with the amounts assessed against each of them as appears in the assessment roll of said city, which is a true statement thereof; and also returned the names of said taxpayers who signed the petition, together with the amounts assessed against them (from which it appeared that the signers were a majority both in number and amount). They also certified in their return that the assessment rolls of said city are not a part of the corporate records of said city, within their control, and that they have no means of certifying either the whole or any part thereof to the court. The relator upon affidavits moved that the report be amended by adding a large number of people, assessed to a considerable amount, to the list of taxpayers upon said street within the limits covered by the petition, and also by adding to such return the assessment roll for the year 1896. This motion came up upon notice, whereupon the respondent made motion to quash the writ, which was argued at the same time. The court rendered and entered an order or judgment in terms denying the motion for amendment, granting the motion to quash the writ, and continuing with the following words: “And it appearing to the court that the doings and proceedings of the said common council in regard to the sprinkling of the said street named in said petition and writ, as appears by the return thereto, are manifestly good and valid in the law, therefore it is determined and adjudged that the said action and proceeding of the common council in regard to the sprinkling of Summit avenue in said city be, and is hereby, affirmed.” Afterwards the court, apparently in further...