State ex rel. Christopher v. City of Portage , 14 Wis. 550 ( 1861 )

By the Court,

PAINE, J.

After tbe decision overruling tbe motion to quash tbe alternative writ, an answer was filed by tbe respondents, and tbe relator filed a reply, to wbicb tbe respondent bas demurred. The answer alleges that tbe charter wbicb was in force at tbe time of tbe making of tbe contract and tbe doing of tbe work set forth in tbe relation, bad been repealed and a new one adopted in its stead. But it was not suggested that tbe city bad no power, under tbe charter now in force, to collect tbe sums necessary to pay for this work, and as no point was made upon it in tbe argument of counsel, we shall assume that none is intended to be made.

Tbe principal reason set forth in tbe answer, and relied on in support of this demurrer, why tbe city authorities should not proceed to comply with tbe writ, is tbe alleged impossibility of making at this time any such equalization among tbe several lots fronting on tbe street where tbe work was done, as tbe charter required. It is said that a large number of tbe lot owners did their own work, as tbe ordinance permitted, and that they made no measurement and kept no account of tbe expense, and that tbe city bas now no means of ascertaining what was tbe amount of work or tbe cost of it. If this were true, it would follow from our former decision that it would be a good answer to tbe relation ; for that decision was based entirely on tbe assumption that it was still possible to equalize tbe expense of the whole work among tbe several lots according to their front, as required by tbe charter. But tbe reply avers that “ the whole work done is still in existence and susceptible of measurement and determination as to tbe whole amount, and tbe amount done by each lot owner, and in front of each lot, and tbe expense thereof.” And this seems' to us, upon tbe grounds stated in our former decision, to be a good reply. Eor if tbe whole amount of tbe work can now be measured, we are unable to see why an estimate may not be made of tbe en-^re ^116 arK^ an apportionment °I that amount among several lots according to 'tbeir front. It appears that one contract was let, and in estimating tbe value of tbe ^°^e wor^ i* would be done according to tbe prices in that contract. Then if, upon that estimate, those lots in front of wbicb tbe owners bad done tbeir own work, would be liable for any part of tbe amount due on the contract, such amounts should be assessed against them respectively, leaving tbe lots in front of wbicb tbe contract work was done to pay tbeir due proportion. Tbe amounts so chargeable to tbe other lots, would, in a case like this, probably be very small, if anything— and might not be worth pursuing as against those lots. But such a calculation would relieve tbe lots in front of wbicb tbe contract work was done, of such unjust excess, if any; and leave no objection arising out of tbe rule of equalization prescribed in tbe charter, against collecting out of them tbe full amount apportioned to them.

And there can be no doubt that tbe other lots would be justly chargeable with any amounts wbicb sucb a calculation would impose on them. Tbe fact that tbe owners bad done tbe work in front of them, is no reason why it should not be so. Tbe council may have bad the right to allow them to do tbe work, but it bad no right, in consideration of tbeir doing it, to exempt tbeir lots from tbeir full proportion of tbe expense of tbe whole.

Upon tbe facts stated in tbe reply, we must therefore assume that a proper equalization of tbe whole expense may yet be bad, and must overrule tbe demurrer.

Whether tbe same conclusion could be sustained if it had appeared that several different contracts had been let at different prices, may admit of greater doubt.

It is of course unnecessary for us to to say anything upon tbe allegations concerning tbe fraudulent letting of tbe contract, or any of tbe other matters set forth in tbe answer, and denied in the reply, as it is suggested that a trial is desired on those issues.

The demurrer is overruled, with costs.