Newton v. City of Superior ( 1911 )

The following opinions were filed February 21, 1911:

Siebeokee, J.

The appellants insist that the court had no jurisdiction to entertain the equity action for the reason that ch. 539, Laws of 1909 (sec. 959 — 30g, Stats.), provides the only remedy available to tbe plaintiffs for the relief sought in these equity actions. This section provides :

“Sec. 959' — 30(7. If the owner of any parcel of land affected by such determination of.,the council feels himself aggrieved thereby, he may within twenty days after the date of the first publication of such notice of final determination appeal therefrom to the circuit court, and such appeal shall be taken, tried, and determined, and bonds for .costs shall be given and costs awarded in like manner as in ease of appeals from the disallowance of claims under chapter 40a, R. S. 1898, provided that said appeal shall not affect said contract, but certificates or improvement bonds, -as the case may be, against the land in question, for the amount of benefits assessed to such land, shall be issued notwithstanding such appeal; and in case the appellant shall succeed, the difference between the amount charged in the certificates or bonds so issued and the amount adjudged to be paid as benefits accruing to the parcel of real estate described in such certificates or bonds shall be paid by the city at large or out of the ward funds, as the council may direct. The appeal aforesaid shall he the only remedy of the owner of any parcel of land, or of any person interested therein, affected by said improvement, for the redress of any grievance he may have by reason of the making of such improvement, or of the change of any established grade covered by said report(Italics ours.)

These actions are brought to restrain the city and its officers from issuing improvement certificates for the cost of the new improvement assessed against the property of the plaintiffs abutting on the improved avenue, upon the ground that the city erroneously failed to deduct from the cost of this improvement apportionable to plaintiffs’ property the amounts assessed against these lots to pay .the cost of the pavement made in 1892. There is no controversy but that the new improvement was made pursuant to the provisions authorizing it up to and including the final determination of the common council of the amounts to be paid by the several parcels of real estate benefited, but the city clerk published only one notice of such final determination of the common council in the official paper, instead of one each week for two successive weeks. 'This omission in the proceedings does not affect the jurisdiction of the council to make the improvement and to assess the ■costs thereof as authorized, and hence this question need not he considered in these equity actions. The alleged injuries •complained of are that the council erroneously failed to deduct from the amounts apportioned and assessed against the lots of the plaintiffs as the cost of the improvements the sums paid by the owners of such lots as assessments for the cost of the improvements made in 1892. It is averred that the city is required to make such deduction pursuant to sec. 959 — 35, Stats. (Laws of 1909, ch. 329), under which no property fronting on a street or avenue is exempt from assessments for the cost of such improvements until it shall have paid in assessments in the aggregate the sum of $2 per square yard. It is also alleged that the city officers threatened to proceed to issue street improvement certificates for such excessive amounts against the lots of the plaintiffs and thus would injure plaintiffs by creating a cloud upon their titles to such lots. The question is, Does the appeal awarded by sec. 959 — 30g, Stats. (Laws of 1909, ch. 539), afford the plaintiffs all the relief they are entitled to for these alleged injuries ? The provisions of this section were originally substantially embodied in ch. 326, Laws of 1889, and were re-enacted in .‘secs. 925 — 184'and 925 — 185, Stats. (1898). They were also incorporated in the charter of the city of Superior as amended in 1891, and were considered and interpreted by this <court in the case of Hayes v. Douglas Co. 92 Wis. 429, 447, 65 N. W. 482. It was there stated, in speaking of this stafr-.ute:

“It is obvious that upon this appeal only the proper amount ■of benefits to the particular lot can be investigated. No remedy appropriate to any other wrong is given. It furnishes .no remedy by which to avoid an unequal and void assessment. Clearly, the appeal is no adequate remedy for the lotowner in this case; and it will not be presumed that the legislature intended the appeal given to be the exclusive remedy, except as ;to matters which can be redressed upon the appeal.”

The tax assailed in that case was held void upon various grounds which need not now he stated in detail. Is the limitation so placed upon this statute permitting an appeal from the assessment to be applied, as there declared, to the enactment of ch. 539, Laws of 1909 (sec. 959 — 30g, Stats.) ? As stated above, the context of the act considered in the Hayes Gase is substantially the same as of this act. Since the legislature has recently re-enacted it as the general law of the state, we deem it appropriate to re-examine the provisions of the act and to determine whether the construction given the act as it was contained in the charter of the city of Superior •should be followed. Is there anything in this section (sec. 959 — 3Op, Stats.) to show that the restriction so given the provision by this court should be modified? A study of the context of the new section has led us to the conclusion that the legislature intended that the remedy provided by it should include relief for all grievances of the property owner arising out of the proceedings taken by the common council and respecting its compliance with the steps required to be taken by the city authorities in the proceedings for making such improvements and assessing the proper proportions of the cost thereof to the property liable therefor. On such appeal the parties should not be restricted to an investigation of the question of whether or not the proper amount of benefits has been assessed against the lots, as was held in the Hayes Gase. Erom the various provisions of the act it appears to us that the legislature intended to provide that on such appeal the •court should have the right to investigate the proceedings actually taken and to ascertain whether or not there were fatal •omissions in the course of the proceedings taken by the municipal authorities in making the improvements, and to award such relief as the actual state of. the proceedings demanded to protect the appellants from any wrongful invasion of their rights flowing from a failure to comply with the statutes. We can perceive, no reason why parties seeking relief from errors .in the proceedings should not be required to seek it after the final determination of the council by an appeal in the proceeding. The procedure affords a speedy, ample, and effective remedy to prevent injury from any errors committed by the council in authorizing the improvement and assessment,, and it will enable the court to investigate complaints against the course pursued by the council in authorizing such a public improvement and thus prevent the inconvenience and large-expense incident to the institution of actions by the lotown-ers. This law, furthermore, specifically declares that “said appeal shall not affect said contract, but certificates or improvement bonds, as the case may be, against the land in question, for the amount of benefits assessed to such land, shall be issued notwithstanding such appeal,” and directs payment from city funds of any difference between such a certificate- and the amount found due on such appeal. This provision clearly is a legislative declaration that the issuance of an improvement certificate for the cost of such improvements shall not be prohibited. The reason therefor is apparent. Under the scheme of improvement provided, the contractor is dependent for his payment on the benefits assessed. Any prohibition on the issuance of certificates is likely to result in frustrating the efforts of a city to secure responsible and reliable-bidders at reasonable prices for making such improvements. These provisions of the law secure to the contractor his pay and place on the city the consequences of mistakes and defaults in making the improvements and collecting the costs thereof. It seems to us obvious from the context that it was intended that the remedy by injunction, prohibiting the issuance of such certificates in cases where an appeal lies under the act, should be denied to lotowners, and that the formerly existing equitable remedy for such a complaint should be abridged to that extent. Applying the provisions of this act to the instant case, we find that the relief sought by the plaintiffs is remediable on appeal from the final determination of the council fixing the amount to be paid by the real estate as the benefits on account of this improvement. Since, as heretofore indicated, these actions are brought to discharge real estate from the assessments against it, or to reduce the assessments by deducting the amounts formerly assessed and paid thereon for pavements, and to restrain the issuance of improvement certificates, they should not be entertained, and the parties should be required to seek redress for both the alleged and threatened wrongs by appeals from the final determination of the council, the only remedy available to them.

3STo judgments were entered in the appeal actions, nor were they consolidated with the equitable actions so as to require but one judgment in all the actions before the court. Under such a state of the record the actions on appeal from the council determination cannot be reviewed in this court, nor can the merits thereof be determined on this appeal, though the parties requested a final determination thereof on this hearing. Any attempt to accomplish this result would be ineffectual before judgment is entered in the appeal actions in the lower court.

By the Qouri. — The judgments entered in the equity actions must be reversed, and the causes be remanded to the trial court with directions to enter judgments of dismissal.