Sexsmith v. Smith , 32 Wis. 299 ( 1873 )

Cole, J.

Upon the facts of this case we are clearly of the opinion that the plaintiff was not entitled to a remedy by injunction from a court of equity. He seeks to restrain the county clerk from issuing a tax deed upon a tax certificate issued on the sale of his lot for a local improvement. The principal ground upon which he asks this relief is, that the improvement was made without any authority on the part of the common council of the city. The charter of the city of Eond du Lac (sec 3, ch. 13 of the charter) gives power to the street commissioners or board of public works, when authorized by the common council, to grade and pave streets at the expense of the adjoining lots, but provides that the common council shall have no authority to authorize the commissioners to make such improvement unless the owners of three-fifths of the number of feet frontage in the blocks fronting upon the street to be improved, and chargeable with the expense, shall petition the common council therefor — each petitioner stating the number of feet front of ground owned by him and affected by the work; and it is enacted that “the signing of any such petition shall be taken and construed as a release of all claims for damages for every such signer.” Ch. 59, P. & L. Laws of 1868. In this case a petition was presented to the common council asking for the pavement of the street. The whole frontage of the street was 5010 feet; three-fifths of which is 3006 feet. The petition presented to the common council purported on its face to be signed by the owners of 3,059 feet; but the proof showed that one or two of the signers did not actually own as many feet frontage as the petition represented, and there was evidence that the name of one person was signed by his son, who was not authorized to sign bis father’s name thereto. But the plaintiff signed the petition requesting the common council to order the pavement, and it does not appear that he made any complaint that there was any defect or irregularity in the proceedings while the improvement was being made. And not until the pavement had been made did he raise any objection that the petition upon which the work was ordered was not in compliance with the charter. Under these circumstances we do not think that he is entitled to the equitable interference of the court by injunction. For it is not for every violation of the legal rights of a party that a court of equity will interpose with this extraordinary writ. Kellogg v. Ely, 15 Ohio St., 64; City of Burlington v. Gilbert, 31 Iowa, 356; S. C., 7 Am. R., 143; Evansville v. Pfisterer, 34 Ind., 36; Motz et al. v. The City of Detroit et al., 18 Mich., 496. The remarks of C. J. Cooley in the latter case, at the close of his opinion, will fully apply to the case before us. It was in compliance with the jjetition signed by the plaintiff that the common council ordered the improvement. The contractor knew this, and might well assume that so far as the plaintiff was concerned there would be no attempt to prevent the collection of the assessment. For, upon the facts, the plaintiff may well be considered as a willing and actively consenting party to all the proceedings which led to the assessment. Whether, therefore, the assessment is legally valid or not is immaterial for the present inquiry, since there is no ground on his part for the interposition of the court by way of injunction to restrain the execution of a tax deed by the clerk. If he has any legal remedy, he can resort to it. But he ought not to resort to equitable remedies for relief, when the only wrong of which he can now complain is that the common council acted favorably upon his petition requesting the improvement to be made. The charter makes the mere signing of the petition a release of all claims for damages on the part of each signer; and a court of equity may properly give some weight to such a provision, when appealed to to grant an injunction.

There is some question made that the contractor did not perform the work of grading and paving the street according to the specifications. But the street commissioners accepted the work as a full and complete performance of the contract. The plaintiff is in no- position now to inquire into that matter.

By the Court— The judgment of the circuit court is reversed, and the cause remanded with directions to dismiss the complaint.