Abbot v. City of Milwaukee , 205 F. 933 ( 1913 )

GEIGER, District Judge

(after stating the facts as above). The charter provision (section 17, supra) aims to provide the method and means whereby, in the situation of contemplated street paving, water and gas service pipes and house drains be laid. Manifestly an object to be accomplished is to prevent tearing up permanent pavements. It grants to the council the power to require such pipes and drains to be laid; and upon default by the owners of abutting property to have them laid by the commissioner of public works. When, therefore, the owner is required to lay them, he must he conceded to have the right to comply. Whether the charter grants him that right or merely recognizes his antecedent right is not material. It may be assumed that he has such right, and that the charter provision is effective to compel him, in the situation noted, to exercise it,, or to submit to having his property burdened with the cost which the municipality may incur upon his failure. In any view, it is a substantial right in whose full exercise, and against whose improper foreclosure the owner is entitled to protection. Johnson v. Oshkosh, 21 Wis. 186; Kneeland v. Milwaukee, 18 Wis. 411; Foote v. Milwaukee, 18 Wis. 270; Rork v. Smith, 55 Wis. 77, 12 N. W. 408.

Now the bill discloses, in brief, that on April 1, 1912, the commissioner of public works pi'epared the plans and specifications for the work in question; that on April 19th the council by resolution required him to cause such work to be done; that on May 21st he issued a notice to owners and occupants to do the work, specifying therein that it “must be done on or before the 3d day of June, 1912, failing in which it will be let by contract as required by law”; that the publication thereof was begun on May 22d in some of the official papers, and on May 23d in others. It was therefore completed May 29th. On May 28th the commissioner called for proposals to do the work, stating that bids therefor would be received until June 7th. The publication of such call for bids was completed June 6th; and on June 7th the bids were opened, a contract let and entered into on that day with one Werner who completed his work June 12th, the commissioner thereupon reporting and certifying to the comptroller the cost of the work which was accordingly assessed against the property ■ as stated. In other words, the city called for bids before the notice to the owner was given (i. e., before the publication thereof was completed), and actually awarded the contract before the expiration of the 10 days thereafter afforded by the charter to the owner for the doing of the work.

To accomplish the ultimate purpose of having the work done consistently with due protection of the owner’s right to do the work, these steps were to be taken and these conditions complied with: (a) The resolution by the council directing the commissioner to cause it to be done; (b) the preparation ánd filing of plans" and specifications; (c) notice to the owner to do the work; the same to be published for six days in the official papers; (d) the lapse of ten days after publication of notice within which such owner is required to do the work.

It is clear that the exercise by the owner of his right to do the work, and the exercise by the city of its right, cannot concur in point of time. The latter arises when, by the provisions of the charter, the former has been foreclosed. Until then, it can neither do the work nor create the liability with whose satisfaction the owner is ultimately burdened if he does not do the work. The authorities cited by counsel for complainant demonstrate that the charter provision in question and similar provisions have uniformly been so construed that, not only the taking of each of the various steps, but also the order in which they are to be taken, is of the essence of the procedure; that the taking of each is a condition precedent to the right to take those following it. Myrick v. La Crosse, 17 Wis. 444; Wells v. Supply Co., 96 Wis. 122, 70 N. W. 1071; Kneeland v. Milwaukee, supra; Johnston v. Oshkosh, supra; Fass v. Seehawer, 60 Wis. 525, 19 N. W. 533; Rork v. Smith, supra.

It is urged on behalf of the city, that, if the abutting owner does not start operations to do the-work within the 10 days, then the city may do the work; and, inasmuch as there is no allegation that the latter actually began the work within the 10 days, the mere making of the contract by the city within that period was permissible, considering it to be provisional, or conditioned upon the failure of the owner to so do the work. But the answer to this is, as indicated, that the legality of the tax depended, not upon the manual doing of the work by the city, but upon its power, its jurisdiction, to make the contract whose burden is carried into the assessment against complainant’s property. Aside from this, it would manifestly open the door for oppression of owners, if during the limited time awarded to them for doing the work the city could enter the field as a competitor. If the owner’s right to do the work is substantial, then certainly during the time specified, not only should he he free to do> it, but, the market for having it done, should be free to him.

The suggestion that these charter provisions may be regarded as directory, that the city may proceed upon a hypothesis that the owner may not exercise his right, is to my mind wholly repugnant to the notion that the right is substantial; and, if entertained, would, as has been stated, “effectually fritter away all the rights” of the owner. Leach v. Cargill, 60 Mo. 316; Rork v. Smith, supra, 55 Wis. 80, 12 N. W. 4081

The conclusion is that the failure by the city to give to the owner the full 10 days after proper publication of the notice constitutes a fatal jurisdictional defect in an assessment carrying to complainant’s property the burden of a contract made by the city within such time; and the motion to dismiss must be denied.