Town of Muskego v. Drainage Comm'rs

• Decision Date: 05 November 1890
• Citation: 78 Wis. 40,47 N.W. 11
• Parties: TOWN OF MUSKEGO v. DRAINAGE COMMISSIONERS.
• Court: Wisconsin Supreme Court

78 Wis. 40

47 N.W. 11

TOWN OF MUSKEGO

v.DRAINAGE COMMISSIONERS.

Supreme Court of Wisconsin.

Nov. 5, 1890.

Appeal from circuit court, Waukesha county.

This appeal is from an order of the circuit court in certain drainage proceedings, under chapter 169, Laws 1887, refusing to vacate two assessments made by the drainage commissioners appointed under said act, upon the town of Muskego, the appellant, amounting to $450, which assessments had been theretofore confirmed by the court. The material proceedings in the matter were as follows: December 6, 1887, a petition, signed by the required number of the owners of wet and overflowed lands adjacent to Muskego lake, in the town of Muskego, Waukesha county, praying that proceedings be instituted for the purpose of executing the drainage scheme contemplated by chapter 169, Laws 1887, was presented to the presiding judge of the circuit court of that county. The court thereupon made an order appointing a time and place for the hearing of such petition, and directing notice to be published in a designated newspaper, as required by the act. The order itself was thus published as such notice. At the time and place so appointed, the court heard the petition, adjudicated that the proposed system of drainage was of such paramount public benefit as to warrant the proceeding authorized by chapter 169, granted the prayer of the petition, and appointed the respondents commissioners to act in the premises as directed by said chapter. The order is dated February 8, 1888. The commissioners thereupon duly qualified, and entered upon the discharge of their duties as such. July 19, 1888, the commissioners presented to the circuit court their report, showing in detail the proposed plan of the improvement, the estimated cost thereof, together with a list of lands, and the names of the respective owners thereof (124 in number) in the town of Muskego which will be benefited by the improvement, and the amount of benefit which will accrue to each tract of land contained in such list. The commissioners also reported that the town of Muskego “will derive a benefit from such work by the improvement of the highways in said town to the amount and sum of $300.” The circuit court thereupon ordered that notice of the filing of such report be served and published as required by chapter 169. Such notice was published and served as required by the order. It contained a statement of the proposed assessment on the lands of each owner, and on the town of Muskego, and appointed a time and place for the hearing of remonstrances against the proposed assessments. It was duly served on the town of Muskego by a delivery thereof to its proper officers. Pursuant to such notice, several remonstrances against assessments were presented, but none was interposed by the town of Muskego. On the recommendation of the commissioners, orders were made by the court from time to time, changing assessments in certain individual cases. September 28, 1888, the court by its order confirmed the report of the commissioners and approved their assessments of benefits as thus amended and modified. The commissioners proceeded with the improvement, and on May 28, 1889, had received nearly $4,400 on assessments, and had expended in the work $2,700 over and above their expenses and per diem. A detailed report of their transactions, including their receipts, disbursements, and expenditures to that date, was duly made by them, and was approved and confirmed by the court. May 28, 1889, the commissioners presented their supplemental report to the circuit court, showing that the original assessments were insufficient to pay for the improvement, and the damages caused thereby to certain lands in Racine county. They estimated the deficiency at $3,585, and reported a supplemental assessment to the amount of such deficiency on the same lands originally assessed, including $150 on the town of Muskego. An order for service and publication of notice of filing such supplemental report was made, in which it was provided that 20 days after the completion of such publication should be given each person or corporation assessed in which to interpose objections thereto. Notice of filing the report was served and published as required by the order. The appellant town was duly served therewith. After the expiration of the time limited for hearing objections thereto, (none having been interposed,) the court made an order, dated August 5, 1889, approving and in all things confirming such supplemental report, and the proposed additional assessment of benefits contained therein. December 3, 1889, the amount of the two assessments against the town of Muskego, being $450, was duly certified to the townclerk of that town, and by him included in the tax-list of that year, and apportioned to and levied upon the taxable property of said town. December 27, 1889, such taxlist was delivered by the town-clerk to the treasurer of the town for collection, who proceeded to collect the taxes levied therein, and was engaged in collecting the same, including such assessments of $450, when the motion was made on behalf of the town to vacate and set aside the assessments against the town of Muskego, and the various orders on which such assessments are based. Such motion was denied January 6, 1890. The town appeals from the order denying the same.Ryan & Merton, for appellant.

Kearney & Dyer and D. H. Sumner, for respondents.

LYON, J., ( after stating the facts as above.)

Chapter 169, Laws 1887, under which these proceedings were had, in all essential particulars is like chapter 442, Laws 1885, known as the “Dane County Drainage Act.” In Bryant v. Robbins, 70 Wis. 258, 35 N. W. Rep. 545, the validity of the latter act was considered, and the act adjudged valid. See, also, State v. Stewart, 74 Wis. 629, 43 N. W. Rep. 947. The judgments in those cases are conclusive of the proposition that chapter 169 of 1887 is a valid exercise by the legislature of the police power of the state. The whole subject is so fully considered in the opinions by the chief justice in those cases that further discussion of it here is unnecessary. The town of...