Beaser v. Barber Asphalt Paving Co.

98 N.W. 525, 120 Wis. 599, 1904 Wisc. LEXIS 107

• Court: Wisconsin Supreme Court
• Decided: February 23, 1904
• Status: Published

Opinion

Dodge, J.

The judicial policy of this state has now become thoroughly settled that courts of equity will not lend their aid to shield from payment or from the burden of certificates of special assessments for public improvements when the municipality or other governmental representative had .general power to cause such improvements to be made at the expense of the private owner, and the amount assessed is not more than his proper share of the reasonable cost of such improvement ; that if, from irregular exercise of that power, ■or other cause, not affecting adversely the burden imposed ■on him, the imposition be illegal or invalid, he must find his remedy under the strict rule's of courts of law. The reason upon which this policy rests is that such a person will not suffer an unlawful burden from the equitable viewpoint, even if he pays what is assessed upon him; hence that courts of equity, although vested with full power, will, in the exercise •of their discretion, refuse him their peculiar forms of relief. Knapp v. Heller, 32 Wis. 467; Cook v. Racine, 49 Wis. 243, 246, 5 N. W. 352; Hixon v. Oneida Co. 82 Wis. 515, 531, 52 N. W. 445; State ex rel. Schintgen v. La Crosse, 101 Wis. 208, 214, 77 N. W. 167; State ex rel. Hallauer v. Gosnell, 116 Wis. 606, 93 N. W. 542. The plaintiff Fere seems to fall completely within the above-described predicament. The city had fnll power under its charter to cause the streets in front of plaintiff’s premises to he improved as they were at the expense of the premises, to the extent of benefits conferred. Due jurisdiction was acquired. The amount assessed was ascertained by proper statutory tribunal to be plaintiff’s due proportion of the cost of the improvement, and not more than the special benefit to his premises, and the facts so ascertained are not questioned. The work has been done at much expense to some one, and the benefit has been received by the plaintiff. In this situation, under the authorities above cited, he will suffer nothing of inequity if lie be compelled to pay the sum assessed, which, as already stated, is not more than “the just measure of the labor and material required” for the improvement. Gleason v. Waukesha Co. 103 Wis. 225, 233, 79 N. W. 249.

The only objection raised to even the strict legal validity of this charge is that the contract between the city and the paving company was void because the city thereby became indebted, when its debt limit was already exceeded, and because declared void by. sec. 1770&, Stats. 1898; the paving-company being a foreign corporation, and not having complied with that statute. If, however, such invalidity of the contract be conceded, that does not vary the equitable situation. However complete'a nullity the contract, the work has been done, and the benefit conferred on plaintiff, who therefore is in no situation to ask a court of equity to shield him from paying the reasonable cost thereof. Especially immaterial is the invalidity of the contract, predicated upon sec. 1770b. That section only renders the contract void on behalf of the foreign corporation, leaving the obligation thereof as against it unimpaired, so that at every moment after the contract was executed the paving company was bound and compellable to carry it out as fully as if no such statute existed. Ashland L. Co. v. Detroit S. Co. 114 Wis. 66, 89 N. W. 904. Plaintiff therefore was at all times as perfectly assured of the performance of the work, and of the benefits to result therefrom, as if the contract were entirely valid, and in no different situation in any respect because of the failure to comply with sec. l'T'TOS.

Eor the reasons stated, we are satisfied that the trial court correctly dismissed the complaint, and need not consider certain other grounds on which it is claimed the judgment may also be supported.

By the Court. — Judgment affirmed.