State ex rel. Schintgen v. Mayor

• Decision Date: 22 November 1898
• Citation: 101 Wis. 208,77 N.W. 167
• Parties: STATE EX REL. SCHINTGEN v. MAYOR, ETC., OF CITY OF LA CROSSE ET AL.
• Court: Wisconsin Supreme Court

101 Wis. 208

77 N.W. 167

STATE EX REL. SCHINTGEN

v.MAYOR, ETC., OF CITY OF LA CROSSE ET AL.

Supreme Court of Wisconsin.

Nov. 22, 1898.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Certiorari by the state, on the relation of Peter Schintgen, to the mayor and common council of the city of La Crosse and others, to review proceedings for laying a sewer. From a judgment setting the proceedings aside, defendants appeal. Reversed.Martin Bergh, for appellants.

McConnell & Schweizer and Higbee & Bunge, for respondent.

WINSLOW, J.

This was an action of certiorari brought by the relator against the mayor and common council, board of public works, city clerk, and treasurer of the city of La Crosse, for the purpose of annulling and setting aside certain proceedings for the laying of sewers upon certain streets in the city of La Crosse, which had resulted in the levying of special assessments against certain lots owned by the relator amounting to nearly $300. Upon the return the circuit court held that the special assessment was void, and set the proceedings aside, and from this judgment the city officers have appealed.

A preliminary objection is made by the respondent to the right of the appellants to take an appeal, on the ground that they are not interested, either personally or officially, in the result of the litigation, and are not aggrieved by the judgment. In support of this contention, it is urged that, by the provisions of the charter of the city of La Crosse (Laws 1887, c. 162, subc. 5, § 24), the only person interested in the question of the validity of the special assessments is the contractor who built the sewer, because the city is under no liability to pay for the sewer, even though the certificates be held void. The charter provides substantially as did the charter of the city of Milwaukee, in Zwietusch v. City of Milwaukee, 55 Wis. 369, 13 N. W. 227, that the city shall never, in any event, be liable to any one on account of such work, but that the contractor must look to the assessments alone for his pay. So it is said neither the city nor its officers are aggrieved by the judgment; the contractor is the only person aggrieved, and he only can appeal. McGregor v. Pearson, 51 Wis. 122, 8 N. W. 101. In connection with this contention, reliance is placed upon the principles laid down in McCarty v. Supervisors, 61 Wis. 1, 20 N. W. 654, and State v. Common Council of City of Milwaukee, 90 Wis. 487, 63 N. W. 751. These latter cases were cases of removal from office by a county or city board upon charges of misconduct. In both cases the board was acting in a judicial character, and practically as a court, and it was well said in the first of those cases that the board of supervisors had no more right to appeal from a judgment reversing its order on certiorari than a justice of the peace would have to appeal when one of his judgments is reversed on certiorari. This seems plain, but it does not seem in any degree applicable to the present case. Here the city council is upon one side, acting presumably in the interest and for the benefit of the city of La Crosse, pushing through certain improvements which entail a charge upon the relator's property. The council is not acting simply as the arbiter between two citizens, as in the removal cases, but it is the moving party itself, and the owners of lots are the opposing parties. Now, although the contractor may, by the provisions of the charter, assume the risk of collection of the special assessments, still there is a manifest duty resting upon the corporate officers to maintain the integrity and validity of the assessments if possible, and take every step necessary and proper to that end. In this view, the city officials remain throughout the entire proceeding an adversary party, interested in their official capacity in the enforcement of the assessments, and so must necessarily have the right to appeal from a judgment which vacates the entire proceeding.

Chapter 8 of the charter of the city of La Crosse, which governs the construction of sewers, provides, in substance, that the council shall divide the city into sewerage districts; that the board of public works shall make a general diagram of contemplated sewerage for each district, and shall give notice of the completion of such diagram in the official paper, and that it is open to objection and suggestion of all property owners in the district for 10 days, after which time it shall be presented to the council for approval, and shall take effect when mutually approved by both council and board; that on or before March 1st in each year the board of public works shall report to the council the sewers necessary to be built in each district during the current year, in accordance with the general plan previously adopted, and the council may then reject, alter, or approve the recommendations, as it sees fit, and the board shall carry out the work as finally directed by the council. It is also provided that the board of public works may at any time during the year recommend to the council the construction of other sewers than those named in the general report, and the council may act thereon, and order the same built, provided that five days' previous notice of the presentation of such recommendation shall have been given by publication in the official paper of the city. The charter contains the usual provisions as to the letting of contracts to the lowest bidder and the levying of special assessments to pay for the same.

It appears by the return that the only sewerage district ever established by the council was in 1884, when the whole territory south of the La Crosse river was constituted a sewerage district. No diagram of this...