Canfield v. Smith , 34 Wis. 381 ( 1874 )

Cole, J.

We are of the opinion that the plaintiff is entitled to the relief demanded in the complaint, upon the ground that no petition was presented to the common council signed by the owners of three-fifths of the number of feet frontage in the block fronting upon the street to be improved, as required by the city charter. The charter is clear and explicit that the common council shall have no authority to make such an improvement at the expense of the adjoining lots unless such a petition is presented (sec. 3, ch. 13 of the charter as found in ch. 59, P. & L. Laws of 1868); and the court below finds upon the evidence that no such petition was ever presented to the common council. This was a jurisdictional defect in the proceedings for assessing the expense of the local improvement upon the adjoining property, and rendered the tax certificate in question void. The cases decided by this court referred to on the brief of counsel for the plaintiff, establish this doctrine beyond controversy.

But it is said that the petition which was presented to the common council represented on its face that the signers owned three-fifths of the frontage ; and that, under the allegations in the complaint, the plaintiff should not have been permitted to show that any one of the persons signing the petition was not the owner of the property set opposite his name, or that the name of an owner had been signed to the petition without authority. Upon that subject the complaint states and alleges, in substance, that no petition was ever presented to the common council by the owners of three-fifths of the number of feet of frontage in the blocks fronting on Arndt Street, between Satterlee Street and Main Street, praying the common council to grade, pave and macadamize said Arndt Street as was described in the order of the common council authorizing the improvement ; and the plaintiff assumed the burden of showing, and did most conclusively prove, that some of the signers did not own the number of feet front of ground which the petition represented they owned, and that the name of one of the signers was placed upon the petition without authority. The chár-ter provides that each person shall state the number of feet front owned by him and affected by the work asked for in the petition; and the signing of any petition by the owner is to be taken and construed as a release of all claims for damages on the part of every such signer. But the charter does not make the petition evidence of the fact that the signers owned the number of feet represented by them; and proof upon that subject was admissible. But it is further insisted that no evidence could be given of such facts without a particular averment in the complaint, specifically describing the lot or name upon which an issue was made. "We think, however, the allegation was sufficient to admit the proof offered. Besides, we suppose the rule applicable to the case to be as stated in Eldred v. Leahy, 31 Wis., 546-554, that whenever private rights are to be injuriously affected or taken away by the proceedings of these special and inferior jurisdictions, their power to act in the premises must be shown, when questioned. So also the decision in Damp v. The Town of Dane, 29 Wis., 420, where an analogous question was presented under the statute for laying out a highway. The plaintiff took upon himself the onus of showing that the facts essential to the jurisdiction of the common council in ordering the work did not exist because of the want of the proper petition. He proved, by the most satisfactory evidence, that lot 20, block 10, having a frontage on the street to be improved of fifty-nine feet, was really owned by the witness ■Place, who not only lived upon it in 1869 when the work was ordered, but has occupied it since 1855, although the petition represented that it belonged to the signer, P. L. Higbee. Exclude this lot alone, and the petition would not have the owners of the'requisite number of feet frontage to authorize the common council to order the improvement ■ On the petition, also, was the name of P. O’Connor for sixty feet; and he testified that he neither signed it nor authorized his name to be signed by another. The presumption from the evidence offered likewise is, that the petitioner Denigan had no title to the east fifty feet of lot 14, block-6, when the petition was presented to the common council. - These facts indubitably show that the requisite petition to give the common council jurisdiction was never presented, and that consequently the tax certificate was illegally issued. It is no answer to say that the defendant Kallc, who purchased at the tax sale, was a stranger to the proceedings under which the improvement was made, was ignorant of all these defects in the proceedings, and is to be protected. We do not know upon what principle this can be done, or how he can be shielded from the consequences which result from a want of jurisdiction on the part of the city authorities. It is said that the plaintiff had notice that the improvement had been ordered, and that he should at once have informed the common council that the petition had not been signed by the legal owners ; or that there was fraud connected with it; and not having moved until the work was done and the matter passed out of the control of the city, he should be estopped from interposing these jurisdictional defects. We do not think there is any ground for saying that the plaintiff is* estopped from insisting that the common council had no power to order the improvement, by anything he did or failed to do. It was the duty of the common council to know that the requisite petition had been signed and presented before they acted in the matter and attempted to charge the adjoining lots with the expense of the work. The plaintiff is -no more estopped from questioning■ their jurisdiction, upon the facts, than he would-be from questioning the proceedings of a judicial tribunal which should attempt to deprive Mm of his property in a case where it had no jurisdiction whatever.

Without considering the other questions raised and discussed by counsel on their briefs, we think, for the reasons given, the judgment of the circuit court must be affirmed.

By the Court. —Judgment affirmed.