Quam v. City of Fort Atkinson ( 1918 )

SiebecKeb, J.

The plaintiffs, as abutting property owners, assert that they have the right to restrain the defendants, as city officers, from further prosecution of the proceedings to improve Whitewater avenue with a permanent pavement having a concrete foundation as prescribed by secs. 959 — 30a to 959 — 30/, Stats, It is claimed by plaintiffs that the rights conferred on them by sub. 2 of see. 925- — 175 can be invoked against tbe contemplated action of tbe common council. Tbis subsection was added to sec. 925 — 175 by cb. 487, Laws 1915, wbicb provides that tbe existing provisions of tbis section shall be retained and be numbered subsection 1 and .that a new subsection is added, numbered 2, wbicb provides in substance tbat wben tbe street improvement contemplated by tbis statute is undertaken by cities, owners of property fronting on sucb street may, witbin tbe prescribed time “after tbe council determines” to make tbe improvement “as provided in subsection 1 of tbe section,” petition tbe council in writing requesting tbat “said part of said street, alley or court” be improved “with certain material and tbe council shall let tbe contract” for sucb improvement with tbe kind of improvement specified in tbe petition. Tbe plaintiffs claim tbat tbis amendment to tbis section of tbe general city charter law embraced in cb. 40a, Stats., confers on them, as property owners fronting on tbe contemplated street improvements, tbe right to limit by petition-tbe powers of tbe city council in making tbis improvement pursuant to tbe powers conferred by secs. 959' — 30a to 959 — 30j, Stats. An examination of tbe provisions of tbe amended sec. 925 — 175 discloses tbat there is nothing in tbe phraseology of tbe statute indicative of a legislative intent tbat tbe power thereby conferred on lotowners is applicable to and limits tbe powers conferred on city councils by other statutes, nor do tbe terms of tbis statute conflict with those of secs. 959 — 30a to 959 — 30j. Tbe amendment of sec. 925 — 175, Stats., by adding tbe provision of sub. 2, naturally and reasonably indicates tbat tbe legislature intended thereby to restrict tbe power conferred on tbe common council in tbis section by tbe right conferred on tbe lotowners whenever street improvements were made under tbis section of tbe general charter law. Furthermore, it is expressly declared in secs. 959 — 30a to 959- — 30/ that any city may make tbe street improvement therein provided and tbat -these sections of tbe statutes “shall not be construed as repealing any provisions of tbe statutes, but shall constitute and prescribe a mode of making city improvements which any city may follow in any instance, if the common council of such city shall so elect” (sec. 959 — 30/). The two plans for street improvements provided for by the foregoing two legislative schemes are entirely separate and distinct and it must be held that each stands independently of the other and that they present an option to cities coming within both statutes which one shall be followed. This harmonizes with what was said in Dunn v. Superior, 148 Wis. 636, 135 N. W. 145, and Weise v. Green Bay, 143 Wis. 198, 126 N. W. 681. The detailed provisions of these statutes as embodied in each of these statutory plans for street improvements contain many differing elements which differentiate the two plans in such ways as to clearly indicate that they were intended to stand separately and afford to cities included therein a choice between them. It must be held that the plaintiffs had no right to petition the common council to order the contemplated street improvement in conformity with the requests of the plaintiffs.

It is contended that if the council proceeds with the improvements under secs. 959 — 30a to 959 — 30/, Stats., then the council should be restrained because the proceeding is invalid upon the ground that these statutes authorize a special assessment upon abutting property in excess of the benefits derived therefrom. This claim overlooks the express provisions of sub. 1, 8, sec. 959 — 30/, whereby the board of public works is charged with determining the benefits and damages which shall accrue from such improvement to property affected thereby and the amount “that should be assessed to each parcel of such real estate as benefits accruing thereto” by such improvement and the power of the common council to “determine the amount to be paid by the real estate as benefits on account of such improvement. . . and the amount that shall be paid by the city at large or the ward funds or the wards in which the improvement is made.” By clear implication the city is thereby limited to assess no more of the cost of improvement to each abutting parcel of land than the amount of benefits accruing thereto by such improvement. This negatives the plaintiffs’ claim that the city may assess any amount of the costs of such improvement against abutting real estate in excess of the benefits accruing to such property by the improvement. The power to so assess a part or all of the costs of the improvement upon abutting property to the extent of the benefits accruing thereto is generally recognized in the decisions as no infringement of the rights of an abutting owner guaranteed him by sec. 13, art. I, of the state constitution, that “The property of no person shall be taken for public use without just compensation therefor.” It is considered that the trial court properly sustained the defendants’ demurrer to the complaint.

By the Court. — The order appealed from is affirmed.