Welch v. City of Oconomowoc

• Decision Date: 07 November 1928
• Citation: Welch v. City of Oconomowoc, 197 Wis. 173, 221 N.W. 750 (Wis. 1928)
• Parties: WELCH v. CITY OF OCONOMOWOC.
• Court: Wisconsin Supreme Court

197 Wis. 173

221 N.W. 750

WELCH

v.CITY OF OCONOMOWOC.

Supreme Court of Wisconsin.

Nov. 7, 1928.

Appeal from a judgment of the Circuit Court for Waukesha County; Edward T. Fairchild, Judge. Affirmed.

Action begun August 28, 1926, by H. E. Welch against the city of Oconomowoc to set aside a special assessment levied to pay for the installation of an ornamental lighting system in front of plaintiff's property. From a judgment entered January 5, 1928, setting aside such special assessment, the city appealed.Alvin G. Brendemuehl, of Oconomowoc, for appellant.

Frame & Blackstone, of Waukesha, for respondent.

STEVENS, J.

1. The case presents the question whether the special assessment was invalid because based on the assessed valuation of property abutting on the ornamental lighting system, rather than upon the benefits conferred.

Subdivision (16) (e) of section 66.06 of the Statutes of 1923, under which this assessment was made, provided:

“The costs apportioned to the abutting owners shall be assessed to them, respectively, in the ratio of each property's assessed valuation on the street or part thereof covered by said petition.”

The amount of the assessment here in question was determined by dividing the entire cost of the improvement by the total assessed valuation of property adjacent to the the ornamental lighting system, and then multiplying that resulting figure by the assessed valuation of plaintiff's property against which the special assessment was levied, in strict accord with the provisions of the statute quoted above.

No member of the board of public works testified at the trial. The record is barren of any proof that the assessment levied represented the benefits conferred on the property assessed. A special assessment based on frontage might come much nearer compliance with the rule that such assessment must be based upon benefits conferred than does this one based upon the assessed valuation of the property. But the fact that an assessment is based upon frontage is a circumstance so significant as to arouse suspicion. “It is not enough for the board to say that they viewed the premises and exercised their judgment, if the facts negative that assertion.” Kersten v. Milwaukee, 106 Wis. 200, 204, 81 N. W. 948, 949 (48 L. R. A. 851). Here the facts cry out loudly against any finding that the board did actually base the assessment on the benefits conferred.

[1] Subdivision (16) of section 66.06 of the Statutes was repealed by section 6 of chapter 385, Laws of 1925, after the assessment in question was made. We cannot escape the conclusion that this statute was invalid and gave the city no power to levy the assessment here in question. Regardless of the question whether this assessment was based upon a consideration of benefits, the statute cannot be upheld because it authorizes “an assessment upon a basis other than that of benefits. In other words, if the language of the statute be such as to show an intention to grant power to levy either an arbitrary assessment or an assessment which might appear just to the board, but which is in fact not based upon benefits, then such statute necessarily contravenes the constitutional provisions * * * and is void, and any proceedings thereunder are invalid to the same extent as though no statute on the subject had in fact been passed.” Milwaukee Co. v. Shorewood, 181 Wis. 312, 315-316, 193 N. W. 94, 95.

[2] 2. The assessments cannot be sustained as an exercise of the police power, even if we assume that street lights are as essential to public safety as are sidewalks, which may be installed at the expense of the abutting property without considering whether the lot owner is benefited or damaged by the construction of such sidewalks. Eiermann v. Milwaukee, 142 Wis. 606, 609, 126 N. W. 53, 27 L. R. A. (N. S.) 1085. These streets were so lighted as to provide for the safety of the public before this ornamental lighting system was installed, so that it was not necessary to install this new system to provide for the safety of the public. Moreover, the cost was apportioned according to the assessed valuation, and not according to the expense incident to the installation of the lighting system in front of plaintiff's property, which would be the basis of the assessment if the system was installed under the police power.

[3] 3. The assessment cannot be sustained under the provisions of section 62.16 of the Statutes, which relates to the improvement and repair of streets, because no attempt was made to assess the cost according to benefits conferred by the improvement.

[4] 4. The plaintiff is not estopped to questionthe validity of the assessment because of the fact that he did not prevent the installation of the lighting system of which he now has the benefit. The plaintiff and other property owners affected appeared before the city council in person and by attorney to protest against the levying of the assessment on different occasions before the work was done. Under such circumstances, the failure to take steps to stop the progress of the work does not estop plaintiff from questioning the validity of this assessment. Unlike the cases relied upon by the appellant city, the plaintiff did not keep silent until large sums of money had been invested in an improvement that was of lasting benefit to his property and which could not be removed. Here he protested before the work began.

[5] 5. Plaintiff's right to maintain an action to set aside these assessments is not barred by either subdivision (3) (a) of section 62.20 of the Statutes of 1923, or subdivision (3) (a) of section 62.20 of the Statutes of 1927, which provide that, after the expiration of a period which had passed before this action was begun, the improvement certificate issued after the work was completed “shall be conclusive evidence of the legality of all proceedings.” In order to come within the provisions of these statutes of limitation, the entire proceeding must be based upon a valid statutory provision. “Mere delay in the bringing of plaintiff's action cannot validate a void assessment under a statute declared unconstitutional.” Milwaukee Co....