Wright v. Forestal

• Citation: 27 N.W. 52,65 Wis. 341
• Parties: WRIGHT v. FORESTAL AND OTHERS. MARRINER v. FORESTAL AND OTHERS.
• Decision Date: 23 February 1886
• Court: Wisconsin Supreme Court

65 Wis. 341

27 N.W. 52

WRIGHT

v.FORESTAL AND OTHERS.

MARRINER

v.FORESTAL AND OTHERS.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeals from county court, Milwaukee county.

Ordway & Hoyt, for respondent.

John A. Wall and D. H. Johnson, for appellants.

TAYLOR, J.

These actions were brought by the respondents to declare void and set aside certain tax certificates issued by the treasurer of the city of Milwaukee upon a tax sale made by said treasurer January 24, 1883, for the non-payment of special assessments charged against the lots of the respective respondents, described in their respective complaints. The appellants Forestal, Williams, and Reynolds are the owners of the improvement certificates of the board of public works of said city; and the tax certificates issued by the city treasurer are held by the city for the benefit of the owners of said improvement certificates. The complaints set out the ownership of the lots described in the complaints, and the proceedings of the board of public works and common council of said city for the grading, etc., of a street in said city in front of said lots, by which proceedings the city attempted to charge said lots with a portion of the cost of grading, etc., said street; and that the lots were sold by the city treasurer to pay the several sums so charged against said lots. Several irregularities are charged to have intervened in said proceedings which it is claimed render the whole proceedings void, and entitle the plaintiffs to have said tax certificate declared void, as well as the improvement certificates held and owned by the other defendants. The county court, after hearing the cases, granted the relief asked by the plaintiffs, and from the judgments entered in said actions in favor of the plaintiffs the defendants appealed to this court.

Upon the argument in this court by the learned counsel for the respondents it is contended that the proceedings of the city authorities are void for the following reasons: (1) Because the work of improvement, a part of the cost of which was charged to the lots of the respondents, was wholly for the public use, and no part of the cost can therefore be lawfully charged to the property of the respondents, except by way of general tax; (2) that the vote on the resolution of the common counsel directing the work to be done was void, because prematurely taken; (3) that the resolution was never passed as required by the city charter; (4) that the board of public works assessed the lots for benefits according to the cost of the work in front of the same, and not taking into account any real benefit to the lots assessed by making the improvements; (5) that the board of public works divided the work of the improvement, and let a part of the work in 1878 and the remainder of the work in 1882; (6) that no notice of assessment of benefits, or of the confirmation thereof, or to the owners to do the work, was given, or advertisement for bids made.

The first point is clearly untenable. The improvement for which the assessment of benefits was made in this case was for the grading, graveling, planking sidewalks, and paving the gutters of one of the public streets in said city. We suppose that such grading, graveling, paving, etc., of a street is always ordered for the public good, and not for the private advantage of the lot-owners adjoining the same. The question whether such grading and graveling is a benefit to any particular lot or lots on said street is a question for the board of public works to determine in the first place, under the charter; and when their decision in that respect is confirmed, as prescribed by the city charter, such decision is final and conclusive, unless impeached by showing fraud on the part of said board. There is no evidence on which to sustain the charge of fraud against the board of public works in either of these cases. Whether or not the respondents' lots were in fact benefited by the grading of the streets in question was a question of fact which must rest upon the opinion of witnesses. The county court made no finding upon the question of fraud, and it does not appear that any such finding was requested by the respondents, and no such charge of fraud was made against the board of public works in the complaints. The learned county judge held that the resolution ordering the work did not lie over four weeks after its introduction before its passage, as required by the charter, and that it was not passed by a vote taken by the ayes and nays, as required by the charter.

These findings are based upon the following provisions of the city charter: Section 30, c. 144, Laws 1875, being amendments to the city charter of Milwaukee, reads as follows: “Or unless, in the absence of such petition, the resolution of the common council ordering such works shall receive the votes of three-fourths of the aldermen elected, and a majority of the aldermen of the ward in which such work is proposed to be done, and said resolution shall declare why it is necessary for the public interest to order such work. Every resolution ordering work without petition therefor shall lay over at least four weeks after its introduction, and no action shall be taken by the common council if within that time a remonstrance against such proposed improvement shall be presented to the common council, signed by the residents of the city owning a majority of the feet front of all the lots fronting upon each proposed improvement owned by the residents of such city. The vote on the passage of every such resolution shall be taken by ayes and noes, and duly entered in the journal of proceedings.” The proof shows that the resolution was presented at a meeting of the common council held on the twenty-first of January, 1878, and that it was adopted by the council at a meeting held on the eighteenth of February next thereafter. It also appears that the resolution was voted upon by the council at the same time that several other resolutions and propositions were voted upon. The entry made by the clerk upon the votes taken was as follows: “Alderman Ludwig, from the local committee of the First ward, reported to adopt the resolution referred, namely: ‘A resolution that it is necessary to cause North Water street, from Brady street to Racine street, to be graded and graveled, the sidewalks planked, and the gutters paved, and that the board of public works have the same done.’ Adopted by vote hereinafter recorded on folio 875.” The vote as recorded shows that it was taken by ayes and noes, and that all the aldermen present, 29 in all, voted in favor of the resolution reported. The resolution itself was sufficient in form and substance, and no objection is made to it. The 29 votes were more than three-fourths of the aldermen elected, and also a majority of the aldermen of the ward. The clerk in his testimony states the way in which these votes were taken. He says: “The vote was not taken on that resolution alone. The vote was put in this way: The committees report all the matters referred to them, and when no objection is made they are laid aside, and when the order of business is through with they are taken up, and if no objections are made, and no separate vote demanded, they are all adopted in one vote.” The record of the clerk contains the folfowing entry before recording the votes upon these resolutions: “As no separate vote was demanded, and no objection being made, the resolutions hereinbefore mentioned, and favorably reported upon, were all adopted by the following votes.” The vote is then given in full. The evidence also shows that no remonstrance of any kind was ever presented to the common council against the improvement of said street.

The learned counsel upon both sides have very carefully and fully discussed the question as to the rules which should govern in the computation of time under various provisions of law, and have cited many cases bearing upon the question from the English courts, and from the courts of this country. It will be seen by an examination of the briefs of the learned counsel that there is considerable diversity of opinion upon the subject, and that different courts have come to different conclusions upon similar statutes. We do not consider it profitable to review those decisions in the determination of this case. The statutory provision in this case is an unusual one, and very few, if any, of the decisions will be found applicable to the language used in the statute above quoted. The language is: “The resolution shall lie over at least four weeks after its introduction, and no action shall be taken by the common council if within that time a remonstrance,” etc., “shall be presented to the common council.” The question was presented to the council when the four weeks expired, so that they might act on the same. They evidently construed it, as men ordinarily would, that a week was the period of time extending from Monday of one week to Monday of the next week following, and not until Tuesday of such week, and that the resolution, if introduced on Monday, had laid over four weeks when the fourth Monday thereafter had arrived, and that they were at liberty to act upon it...