Blount v. City of Janesville

31 Wis. 648

• Court: Wisconsin Supreme Court
• Decided: June 15, 1872
• Status: Published

Opinions

Tbe following opinion was filed at tbe June term, 1871

Cole, J.

These are cross appeals from different parts of tbe same order. Tbe action is brought to restrain tbe collection of certain special assessments made against tbe plaintiff’s lots on West Milwaukee Street in tbe city of Janesville, for regrading that street and repaving it with tbe Nicholson pavement. Tbe circuit court granted tbe injunction to restrain tbe collection of tbe assessment for repaving tbe street, but dissolved it so far as tbe assessment for regrading tbe street and preparing tbe road bed was concerned. So each party appeals from that portion of tbe order adverse to him. Both branches of tbe order depend essentially upon tbe same questions of law and fact, and tbe appeals will therefore be considered together. And tbe first questions which will be considered are those arising under the provisions of the city charter.

It is first insisted on the part of the plaintiff, that under the charter the expense of repaving a street cannot be charged upon the contiguous lots. It is claimed that this is reasonably clear from the language of the different provisions of the charter. By section 18, chapter 6 of the charter (P. & L. Laws of 1866, ch. 474), it is enacted that the common council shall have power to cause any street or any part thereof to be graded, worked, graveled, macadamized, paved or repaved, planked or replanked and repaired, and to cause any sidewalks, crosswalks, drains, sewers or culverts to be made therein, as it shall deem necessary, and the same shall be repaired or relaid as may be ordered by the common council; providing that no street or any part thereof shall be graded, macadamized, paved or repaved, planked or replanlced, without a recommendation in writing, signed by a majority of the resident owners of property which is bounded by the street thus improved. By the next section it is provided, that the common council, prior to ordering any street to be graded, paved or repaved, shall cause accurate specifications of the proposed work to be prepared, and shall advertise, in a newspaper published in the city, for sealed proposals for the performance of the work. When such proposals have been received, the common council is to determine which is the most favorable, and may, by a vote of a majority of its members, accept such proposal and authorize the construction of the work, directing the expense thereof to be assessed in the manner specified therein.

In case the work was grading or paving a street, the expense of the whole work was to be ascertained, and each lot on both sides of the street was to be assessed with its proportion of the expense, which was to be ascertained by multiplying its number of feet front by the average expense per foot, excluding cross-streets from the computation. If the work was the construction of any crosswalk, culvert or sewer, or the keeping in repair of crosswalks, sewers, streets, etc., after the same bad been constructed, graded, planked or paved, the expense thereof was to be paid out of the ward fund. When the work was the construction, repairing, relaying or replanking of any sidewalk, each lot fronting thereon was to be assessed with its just proportion of the expense.

It is claimed that these provisions show with reasonable certainty that the work of repaving a street was to be done at the expense of the ward fund, and not at the expense of the contiguous lots. Beyond all question, it is said, the expense of keeping streets in repair is chargeable to this fund, and repaving a street is nothing more than keeping it in repair.

It is undeniably true that a covenant to repair has generally been construed as importing the duty to rebuild in case of total loss or destruction of the property. The case of Beach v. Crain, 2 N. Y., 86, is an illustration of this rule. But we do not think the word “repair” is used in this enlarged sense in the city charter. It refers rather, we think, to the ordinary repairs which are necessary to keep the street in a good condition when there has been a partial waste or destruction of the existing material. But in this case the old macadamized pavement, consisting of stone, was removed, and one consisting of wood mainly, or at all events of an entirely different character, was substituted in its place. It is not usual to characterize such a new structure as being merely a repair of an existing improvement. But whatever doubt might arise upon the original provisions of the charter in regard to the right to charge the lots abutting upon the street with 'the expense of repaving the same, is removed by the amendatory act of 1869. That act authorizes the common council to determine the kind of pavement which shall be used for paving or repaving a street, and, in case it is determined to use any pavement which is patented, it has the power to procure the right to use such pavement, and the sum paid therefor is to be added to the expenses of such paving or repaving, and be apportioned there witb, and charged upon tbe property properly chargeable with the expense of such paving or repaving, and be collected in the manner provided in section 19 of ch. 6 of the city charter. Sec. 14, ch. 298, P. & L. Laws of 1869. This enactment shows very clearly, the sense of the legislature as to the meaning of the provisions of the charter, and that it intended the expense of repaving a street should be chargeable to the contiguous property. Such an improvement does not properly come under the head of repairs which are made at the expense of the ward fund.

Another objection taken to the validity of the assessment is, that the expense of twelve crosswalks is included therein, which, by subd. 2, sec. 19, is to be paid out of the ward fund. To this objection it is answered that there are no crosswalks, within the meaning of that term; that the Nicholson pavement is a continuous one, being laid to the north and south lines of West Milwaukee Street, with slight elevations in the pavement at the street intersections, which serve for crosswalks, but which are really a part of the pavement, and should be páid for as such. We are inclined to adopt the latter view of this matter. What are termed crosswalks at the street intersections are sub- . stantially and really parts of the main pavement, and the fact that there is an elevation of the wooden block paving of three inches in the center of the walk, does not change their character. They are constituent parts of the main work, and do not anywhere extend beyond the proper north and south limits of W est Milwaukee Street.

A still further objection is, that the grade of the street was changed, and the expense of this grading is included in the assessment on the lots contiguous to the improvement, while the charter requires that such grading be charged upon the lots on both sides of the street “ throughout its whole extent.” But this objection is fully answered by the decision in Dean v. Charlton, 23 Wis., 590-609, on a precisely similar question, where Mr. Justice Paine says: “ The grading, although let by a separate contract, was merely accessory to tbe principal contract for paving tbe street. It was to prepare the street for tbe pavement, and doubtless would not have been ordered except in connection with tbe order for tbe pavement.” If tbe expense of tbe new pavement was properly chargeable to tbe lots contiguous to tbe improvement, then tbe expense of grading, which was a part of the main work, should be so charged.

Again, it is said that a large extent of curbstones was not taken up, but tbe expense of setting new curbstones for tbe entire extent of the improvement is included in the assessment, and tbe owners«n front of whose lots tbe curbstones were allowed to remain are credited on their assessment with tbe cost of setting new curbstones. But, as we understand it, this is really accomplishing the object intended in section 19 of tbe charter. That is, where the owner of a lot fronting on the street within the limits of the proposed improvement has already made an improvement similar in kind and character to the one proposed, then his lot is to be excluded from the computation and assessment of the expense. . In other words, where a lot owner has once made and paid for the improvement ordered, he shall not pay for it a second time while the original work remains in a good condition. Under the course adopted in this case, each lot which had a proper curbing contributes nothing towards the expense of setting new curbstones. This, as it seems to us, was truly carrying into effect the real intent of the provisions of the charter.

These remarks sufficiently dispose of the material objections to the validity of the special assessment which arise under the provisions of the charter, except the one that there was no recommendation for the repavement, in writing, signed by a majority of the resident owners of property bounded by the street, presented to the common council before the work was ordered. Such a recommendation was in fact presented to the common council, dated May 13th, 1869, which was signed by a majority of the resident owners of lots bounded on West Milwaukee Street, and wbicb asked that that part of the street from, the west end of the bridge over Rock River to the east line of High Street, be paved with the Nicholson pavement. This was accompanied by an affidavit of J. B. Doe, in which he states that he is acquainted with the owners of lots on the street, and that this recommendation was severally signed in his presence by a majority of the resident owners of property bounded by the street. But it appeared by the affidavit of Mr. Tallman, that quite a number of the signers of this recommendation were opposed to the laying of the Nicholson pavement in the street, and protested against the measure while it was pending before the common council, alleging that they had been induced to sign the recommendation through misrepresenT tation and falsehood on the part of certain members of the common council.

The condition that a street should not be paved or repaved without a recommendation of a majority of the owners of prop: erty which was to pay for the improvement, was obviously intended as a check upon the action of the common council, and the spirit of the provision would not be fulfilled unless the signers should make the recommendation freely and upon a proper knowledge of the facts. Certainly, if they were induced to. sign the recommendation through the falsehood and fraud of members of the common council, there is no reason for saying that they are bound by the recommendation. I should, there-, fore, be inclined to hold the objection that there was no such ^recommendation as the charter contemplated, an insuperable one, were it not for the curative statute of 1871 (eh. 243, R. & L. Laws of 1871). This law, in effect, provides that this rec: ommendation shall be held conclusive evidence of the facts therein stated; and that all the proceedings of the common council, after the reception of the recommendation, relating to the subject matter thereof, which would have been authorized had the recommendation been sufficient, are legalized and declared valid. This statute was manifestly intended to be retrospective in its operation; and, if tbe legislature bad power to enact it, it cures tbe defect in tbe proceedings. It is said, however, that tbe enactment confessedly attempts to change tbe rights of parties in respect to transactions wholly past and concluded, and that the legislature had no constitutional authority to pass it. But it seems to me that the law must be sustained upon the doctrine laid down in the cases of Tallman v. The City of Janesville, 17 Wis., 71; Cross v. The City of Milwaukee, 19 id., 509; May v. Holdridge, 23 id., 93, and cases of that character. The principle upon which these decisions rest is very clearly stated by Judge Cooley, in his work on Constitutional Limitations, as follows: “ If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something which the legislature might have dispensed with the necessity of by prior statute, then a sribsequent statute dispensing with it retrospectively must be sustained.” P. 371. Now there would not seem to be room for a reasonable doubt about tbe power of tire legislature to bave authorized the common council in the first instance to order West Milwaukee Street to be paved with the Nicholson pavement at tbe expense of adjoining lots, without any recommendation of the owners of property on that street. The legislature might have dispensed with any such check upon the action of the common council in regard to the improvement; and, having the power to dispense with all recommendations upon the subject, it can, upon the principle just stated, render it immaterial by a subsequent statute. For, as remarked by Mr. Justice Paine, in May v. Holdridge, “these special assessments for local improvements are to be regarded as one of tbe constitutional modes of taxing tbe citizen for the public benefit; and whenever defective proceedings for that purpose have been had, these must present the same basis for the application of the corrective power of the legislature, that would be furnished by defective proceedings to assess a general tax.” These statutes, enacted for the purpose of curing defects and irregularities in proceedings for tbe assessment and collection of taxes, stand apon different grounds from tbe legislation referred to in tbe cases of Hasbrouck v. The City of Milwaukee, 13 Wis., 37, and Denny v. Mattoon, 2 Allen, 361. It is unnecessary to dwell upon tbe distinction here. It is sufficient to say that it is tbe settled doctrine of this court, that there exists in the legislature power to cure these defects in tax proceedings, although the rights of parties are affected thereby. And as the law of 1871 only attempts to validate tbe acts of tbe common council in ordering tbe street repaved without tbe proper recommendation — a thing which tbe legislature might have previously authorized — we think it mast be sustained. In the case of Weeks v. The City of Milwaukee, 10 Wis., 242, and in a number of other cases which have come before this court for determination, these special assessments for local improvements have been held valid. We still think they are not obnoxious to any constitutional objection, although we are well aware the system sometimes leads to great abuse and oppression. But the corrective power for such evils rests with the legislature, and not with the courts. And if these local assessments can be sustained for the expense of once paving the street, we see no reason for holding them invalid when made for a new pavement which may have become necessary. The power to make the assessments for the second improvement is necessarily included in the power to make it in the first instance. We have already intimated that according to our construction of the provisions of the charter, the expense of repaving a street is made chargeable upon the lots abutting on the street, and that such an improvement was not properly repairs which are made payable out of the ward fund. And this being so, the only remaining question is, whether the legislature has the constitutional power to authorize a municipal corporation to repave a street at the expense of the lots on each side of it; and it seems to me that if these special assessments can be sustained for paving' the street once, they must be for a second pavement. I can see no satisfactory reason for making a distinction in tbe tw o cases. These special assessments for local improvements are an exercise of the taxing power, and it is difficult for me to understand how that power can be said to be limited to paving the street once. I am aware that Mr. Justice Sharswood, who gave the majority opinion in Hammett v. Philadelphia, 65 Pa. St., 146, says that when a street is once opened and paved, thus assimilated with the rest of the city and made a part of it, then all the particular benefits to the locality derived from the improvement have been realized, and that the expense of repaving the street cannot be assessed upon the lots abutting upon it. But suppose the original pavement is destroyed, and as a consequence the street becomes impassable for carriages, and a new pavement is laid. Is there not the same ground for saying that the property along the street is benefited by the new improvement as there is for saying that it was benefited by the one first laid ? The truth is, this whole system of local assessments is environed with difficulty, and frequently leads — as all admit who have examined the subject— to monstrous injustice and oppression. Our constitution sanctions it, but makes it the duty of the legislature, when authorizing municipal corporations to exercise this power of imposing local assessments, to restrict it so as to prevent abuses thereof: In the case of Hammett, considerable stress is laid in the majority opinion upon the circumstance that the object of the improvement there ordered was not to bring or keep Broad Street in a condition to be used for the advantage and comfort of those who lived upon it, and for ordinary business and travel, but it was intended to fit that street for a “ great public drive — a pleasure ground along which elegant equipages may disport of an afternoon.” What influence that circumstance may have had upon the decision in that case, it is impossible to say. But it seems to me that the power to make the assessment for the second improvement is necessarily included in the power to make it for the first structure. This court, after mature consideration, sustained the validity of local assessments in tbe Weeks case, and bas re-affirmed tbe doctrine there laid down in a number oí cases wbicb have since arisen. Tbe principle of those decisions is decisive of tbe question we are now considering. Tbe conclusion is inevitable that if a special assessment can be made upon tbe adjoining lots for paving the street in tbe first instance, it can be made for repaving tbe street when such repavement becomes necessary by tbe waste and decay of the existing material. Tbe injustice and inequality of constantly repaving streets at tbe expense of tbe owners of tbe abutting lots are admitted, but this is tbe vice of tbe whole system.

Tbe other objections taken to tbe validity of the assessment bave not been overlooked; but we' do not deem them of sufficient importance to require special notice. We think that part of tbe order appealed from by tbe city, wbicb restrains tbe collection of tbe assessment made for paving tbe street with new pavement, must be reversed; and that tbe other part of the order, appealed from by tbe plaintiff, must be affirmed.

By the Court.— So ordered.