Berger v. City of Superior

Wisconsin Supreme Court

Berger v. City of Superior

166 N.W. 36, 166 Wis. 477, 1918 Wisc. LEXIS 25

CourtWisconsin Supreme Court

DecidedJanuary 5, 1918

StatusPublished

Cited by8 cases

This text of 166 N.W. 36 (Berger v. City of Superior) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Berger v. City of Superior, 166 N.W. 36, 166 Wis. 477, 1918 Wisc. LEXIS 25 (Wis. 1918).

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Opinion

Viiije, J.

In view of the nature of .the action and the allegations of the complaint no fuller statement of the issues litigated is deemed necessary. Plaintiffs, though alleged to be owners of property affected by the proposed improvement, cannot maintain this action by reason of such ownership. Eor any wrong suffered in that capacity they must seek redress through an appeal from the final determination of the city council, provided for in sec. 959 — 30g, Stats. 1915. That is the only remedy they have as owners of property affected by the proposed improvement. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986; Dunn v. Superior, 148 Wis. 636, 135 N. W. 145. As general taxpayers they may maintain a suit in equity to restrain the performance of the contract if it is made to appear that it is invalid and that loss will ensue to the general taxpayers through its performance. But in such suit they are not recognized as standing for any direct interest of their own. They represent only the interests of the general taxpayers. Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813. In the present case plaintiffs allege that the benefits accruing to property affected by the improvement were determined to be $8,100; that the contract price was $6,590.34, and that the whole thereof would be assessed proportionally against the property affected by the improvement. That being so, general taxpayers can suffer no loss. If it be urged that upon an appeal from the final determination of the council the city may be required to refund moneys to the successful appellant, the answer is that no such fact is alleged in the complaint. Before a court of equity will entertain a general taxpayers’ action it must affirmatively appear that, if the allegations of [480]*480tbe complaint are true, loss to tbe general taxpayers will follow. 4 Dillon, Mun. Corp. (5th ed.) § 1586. Here there is no such showing either by the pleadings or the proof. The trial court, therefore, should have dismissed the complaint upon the merits because it failed to state a cause of action. Since the same result was reached by a trial the judgment must be affirmed.

By the Gourt. — Judgment affirmed.

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Viiije, J.

In view of the nature of .the action and the allegations of the complaint no fuller statement of the issues litigated is deemed necessary. Plaintiffs, though alleged to be owners of property affected by the proposed improvement, cannot maintain this action by reason of such ownership. Eor any wrong suffered in that capacity they must seek redress through an appeal from the final determination of the city council, provided for in sec. 959 — 30g, Stats. 1915. That is the only remedy they have as owners of property affected by the proposed improvement. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986; Dunn v. Superior, 148 Wis. 636, 135 N. W. 145. As general taxpayers they may maintain a suit in equity to restrain the performance of the contract if it is made to appear that it is invalid and that loss will ensue to the general taxpayers through its performance. But in such suit they are not recognized as standing for any direct interest of their own. They represent only the interests of the general taxpayers. Kircher v. Pederson, 117 Wis. 68, 93 N. W. 813. In the present case plaintiffs allege that the benefits accruing to property affected by the improvement were determined to be $8,100; that the contract price was $6,590.34, and that the whole thereof would be assessed proportionally against the property affected by the improvement. That being so, general taxpayers can suffer no loss. If it be urged that upon an appeal from the final determination of the council the city may be required to refund moneys to the successful appellant, the answer is that no such fact is alleged in the complaint. Before a court of equity will entertain a general taxpayers’ action it must affirmatively appear that, if the allegations of [480]*480tbe complaint are true, loss to tbe general taxpayers will follow. 4 Dillon, Mun. Corp. (5th ed.) § 1586. Here there is no such showing either by the pleadings or the proof. The trial court, therefore, should have dismissed the complaint upon the merits because it failed to state a cause of action. Since the same result was reached by a trial the judgment must be affirmed.

By the Gourt. — Judgment affirmed.

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Bluebook (online)

166 N.W. 36, 166 Wis. 477, 1918 Wisc. LEXIS 25, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-city-of-superior-wis-1918.

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