Dickson v. City of Racine , 61 Wis. 545 ( 1884 )

Taylor, J.

After reading the testimony contained in the bill of exceptions we are inclined to think the court erred in directing a verdict in favor of the respondent, even upon the theory upon which the case was tried in the circuit court; but, however that may be, we are clearly of the opinion that the court erred in submitting the questions to the jury upon the theory that only the actual benefits to his land accruing from the opening of the street cobid be lawfully assessed thereon, and refusing to give the instructions requested by the counsel for the city. This case comes within the rule laid down in the case of Teegarden v. Racine, 56 Wis. 545. The proceedings in the case at bar are taken under a statute which is in all respects substantially like that under which the proceedings were taken in Teegarden v. Racine, and it was there held, after a careful consideration of the case, that upon an appeal by a land-owner from an assessment for benefits the action of the common council was conclusive upon the question as to what property was benefited and hence should be assessed; but that its decision as to the proper portion of the whole assessment to be borne by each lot might be reviewed on the appeal. In that case Justice Oassoday says: “The trial court restricted all inquiry to the simple question whether the appellant’s lands would be benefited by the proposed improvement, and, if so, in what amount. This restriction excluded from the jury the question whether any other lands were included in the assessment, and, if so, whether the appellant’s lands were charged with any more than their proportionate share of the amount of the whole assessment. Such exclusion can be justified only on the theory that each lot or parcel of land included in the assessment is to pay just the amount of its increased value by reason of the improvement, regardless of the question whether the aggregate amount of the whole assessment is equal to the amount of the cost of the proposed improvement, or far above or much below it. . . . Of course, the common council was required to determine what property would be benefited, and hence what ■ property should be assessed. To that extent we are inclined to think that in the absence of fraud, or intentional or unjust discrimination, the action of the common council must be deemed conclusive.”

The only difference between the case just cited and the one at bar is that in the Teegardm Case the common council, in the first instance, determined upon what property the cost of the improvement should be assessed, and in the case at bar that fact was to be determined in the first place by three commissioners to be appointed for that purpose; but their action is to be reported to the council for their approval, and sec. 11 of title Y of ch. 313, Laws of 1876, provides that all parties interested may be heard as well before the common council as before the commissioners, and they are, by sec. 12, allowed twenty days to appeal after the confirmation of the acts of the commissioners by the common council. We see nothing in this case, or in the arguments of counsel, which should induce us to overrule the case of Teegarden v. Racine. We think it is sustained by reason and authority, and that to hold differently would lead to endless confusion, and render it impossible to make a special assessment under the provisions of the charter which could be enforced with any degree of certainty.

Dillon, in his work on Municipal Corporations,sec.596, says: “The many cases which have been decided fully establish the general proposition that a charter or statute authorizing the municipal authorities to open or establish streets, or to make local improvements of the character above mentioned, and to assess the expense upon the property, which, in the opinion of the designated tribunal or officers, shall be benefited by the improvement, in proportion to the amount of such benefit, or upon the abutters in proportion to benefits or frontage or superficial contents, is, in the absence of some special constitutional restriction, a valid exercise of the power of taxation.” “Whether the expense of making such improvements shall be paid out of the general treasury, or assessed upon the property benefited, or legislatively declared to be benefited, and, if in the latter mode, whether the assessment shall be upon all property found to be benefited, or alone upon the abutters, according to frontage or according to the area of lots, is in all cases a question of legislative expediency, unless there be some special restraining constitutional provision upon the subject.” This court has held that there is no special restraining provision in our constitution upon the subject of local assessment. See Weeks v. Milwaukee, 10 Wis. 242; Lumsden v. Cross, id. 282; Bond v. Kenosha, 17 Wis. 284; Johnson v. Milwaukee, 40 Wis. 315.

Judge Cooley, in his work on Taxation, page 449, saj^s: “ When benefits are assessed after this method, the district within which the tax shall be laid may be determined in either of two modes: (1) The legislative authority either of the state, or, when properly authorized, of the municipality, may determine over what territory the benefits are so far diffused as to render it proper to make all lands contribute to the cost; or (2) the assessors or commissioners, who, under the law, are to make the assessment, ma)'' have the whole matter submitted to their judgment, to assess such lands as in their opinion -are specially benefited, and ought, therefore, to contribute to the cost of the work. . . .” On page 451 he adds: “ Where the legislature prescribes no limits to the taxing district, but authorizes an assessment on such property as shall appear to be benefited, the report of the assessors or commissioners can alone determine what the district shall be. The subject is referred to them, as a matter depending on judgment after actual inspection; but, as they only pass upon the question of fact, the district is to be considered as prescribed by the legislature, when the principle is settled which is to determine it.”

In the case at bar, as in the Teegarden Case, the commissioners fix the taxing district by determining what lots shall be subject to special assessment; and when it is so determined, it is the same as though the legislature had fixed the district and left it to the commissioners to assess that portion of the cost of opening the streets which is to be raised by special assessment, upon the property contained in such assessment district in proportion to the benefits received by each lot, upon the theory that the lots in the district are legally chargeable with the amount of the assessment to be made thereon; and, although an appeal is given to the landowner from the assessment as finally made to the circuit court, it is clear to us that such appeal was not intended to give the land-owner the power of changing the assessment district by taking his particular property out of it. The assessment district, as said by Judge Coolet, when fixed, has the same effect upon-the land-owner as though fixed by the legislature, and upon his appeal he can only question the equality of the assessment as compared with the other assessments in the district.

The circuit court erred in refusing the instructions requested by the counsel for the city, as well as in his direction to the jury to find a verdict which practically takes the property of the respondent out of the assessment district as fixed by the commissioners and affirmed by the common council of the city.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.