Wisconsin Elec. Power Co. v. City of Milwaukee
| Decision Date | 05 March 1957 |
| Citation | 81 N.W.2d 298,275 Wis. 121 |
| Parties | WISCONSIN ELECTRIC POWER COMPANY, Appellant, v. CITY OF MILWAUKEE, a municipal corporation, Respondent. |
| Court | Wisconsin Supreme Court |
Shaw, Muskat & Paulsen, Milwaukee, John F. Zimmermann, Milwaukee, of counsel, for appellant.
Walter J. Mattison, City Atty., Ralph J. Chmurski, and Ewald L. Moerke, Jr., Asst. City Attys., Milwaukee, for respondent.
In view of the determination made by the United States supreme court we hold that the constructive notice given by the defendant city by publication of the proposed special assessments against the plaintiff's lands did not meet the requirements of due process. Mullane v. Central Hanover B. & T. Co., 1950, 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865, and Walker v. City of Hutchinson, 1956, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178. Therefore, it was error for the trial court to have sustained the general demurrer interposed to plaintiff's amended complaint.
One of the reasons advanced by the defendant city for opposing plaintiff's motion, that judgment be entered by this court in favor of the plaintiff and against the defendant city in accordance with the prayer of the amended complaint, is that sec. 75.56 and 75.57, Stats., require a stay of proceedings until a reassessment may be made by the city. If defendant is correct in this contention, then the judgment to be entered determining that the assessments were void should be an interlocutory judgment with further proceedings stayed until the reassessment shall have been made. The plaintiff, on the other hand, contends that secs. 75.56 and 75.57 have no application to special assessments made pursuant to the provisions of the defendant city's special charter. Because these issues were not litigated below we deem the proper procedure to be that the cause be remanded to the circuit court to overrule the demurrer. This will accord the city an opportunity to serve and file an answer raising whatever proper issues still remain to be litigated.
Judgment is reversed and cause remanded with directions to overrule defendant's demurrer and for further proceedings not inconsistent with this opinion.
To continue reading
Request your trial
-
Coleman v. Scheve
...also Wisconsin Elec. Power Co. v. City of Milwaukee, 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed. 2d 241 (1956) (per curiam), on remand, 275 Wis. 121, 81 N.W.2d 298 (1957); Wager v. Lind, 389 F.Supp. 213 (S.D.N.Y.1975). See generally Note, The Constitutionality of Notice by Publication in Tax Sale P......
-
Paul Scotton Contracting Co., Inc. v. Mayor and Council of City of Dover
...352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956). On remand, the State Court applied the rule. Wisconsin Electric Power Co. v. City of Milwaukee, 275 Wis. 121, 81 N.W.2d 298 (1957). See also City of Houston v. Fore, Tex.Sup., 412 S.W.2d 35 (1967); Fritz v. Board of Trustees of Town of Clerm......
-
Patterson v. City of Bismarck
...Inc. v. City of St. Louis Park, 258 Minn. 266, 104 N.W.2d 540 (1960), and upon a Wisconsin case, Wisconsin Electric Power Co. v. City of Milwaukee, 275 Wis. 121, 81 N.W.2d 298 (1957), as authority to the effect that something more than constructive notice is necessary to fulfill the prerequ......
-
Konantz v. Stein, 40392
...272 Wis. 575, 76 N.W.2d 341, remanded per curiam, 352 U.S. 948, 77 S.Ct. 324, 1 L.Ed.2d 241; Wisconsin Elec. Power Co. v. City of Milwaukee, 275 Wis. 121, 123, 81 N.W.2d 298, 299.' We have been committed to these principles in registration proceedings since State ex rel. Douglas v. Westfall......