Dunn v. City of Superior

135 N.W. 145, 148 Wis. 636, 1912 Wisc. LEXIS 95

Opinions

Vinje, J.

The appeal of the city of Superior presents but one question not heretofore determined in the case of Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986, and that is: Must a property owner, in proceedings to grade a street under ch. 539, Laws of 1909 (sec. 959 — 30& to sec. 959 — 30j, Stats.), appear before the board of public works or the city council and make objections in order to entitle him to appeal pursuant to sec. 959 — 30g, Stats. ? We think not. There is nothing in the appeal statute that requires any appearance by the property owner at any stage of the proceedings in order to entitle him to appeal. It says:

“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.”

No conditions whatever are by the statute attached to the right to appeal, and the court can make none. Moreover, it is clear from the proceedings to be had that a property owner may not know until the council has made its final determination pursuant to subd. 8, sec. 959 — 30f, whether or not he is aggrieved. Said section provides that “the council may determine the amount to be paid by the real estate as benefits on account of such improvement of such street or alley, and the amount that shall be paid by the city at large or the ward funds or the wards in which such improvement is made.” Until the council makes such final determination the property owner cannot know what he is required to pay. The city or the wards may be required to pay all. It would be idle to require him to object before the objection could attach to any¿ thing determined, even provisionally. The cases cited by counsel for tbe city, bearing upon this question, relate to entirely different statutory or charter provisions, and nothing would be gained by distinguishing them from the case at bar. Our own statute is plain and must govern. The appeal given by it is the only remedy the property owner has. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986. Such exclusive remedy should not be burdened by any conditions not clearly expressed or implied by the terms of the act granting it.

On plaintiffs’ appeal two questions present themselves for determination: First, Do sec. 959 — 30, Stats. (Supp. 1906), and sec. 959 — 31, Stats. (1898), relating to the extension of the time of payment of the assessment, apply to improvements made under ch. 539, Laws of 1909 ? and, second, If so, could the plaintiffs withdraw their requests for an extension of the time of payment of the assessment after making an application therefor to the board of public works as provided by sec. 959 — 31, Stats. (1898) %

Oh. 539, Laws of 1909, in terms creates secs. 959 — 30a to 959 — 30j, Stats., inclusive. By such creation they are made a part of sec. 959 — 30, Stats. (Supp. 1906), being addenda thereto. The legislative intent is clear that ch. 539 was meant to become part and parcel of the subject of “Street Improvements” dealt with in secs. 959 — 30 to 959 — 34, Stats. These sections as they now stand include the new sections created. The language of sec. 959 — 30 (Supp. 1906) is broad in its scope and provides generally that whenever in any city the repaving of any avenue with a permanent paving having concrete foundation shall have been duly authorized, the board of public works may determine that any owner of a lot that is asssessed may have the option to apply for an extension. It would be a forced construction to hold that the legislature did not intend the provisions of this section to apply to an improvement made under ch. 539, Laws of 1909, when such chapter was in terms embodied into the statute of which sec. 959 — 30 is a part. We are satisfied, snob was not the-legislative intent, and conclude that the board of public works-properly held the section applicable to street improvements, made under ch. 539 of the Laws of 1909.

The answer to the second question presented is not so clear. There is much force in the argument that the city had in nowise changed its relation to the subject matter when the withdrawals were attempted to be made. The contractor was not interested in the question of the right of withdrawal, for he had assumed the contract with the express proviso that any or all of the lotowners might extend the time of payment. If they did so extend, he received the bonds; if not, the cash when collected. He had agreed to take either. So it narrows down to a question between the city and the' lotowner.. The trial court found that plaintiffs did not, at the time they made application for an extension, know that their property-had paid its full share of street ’ improvements for paving, and they made prompt efforts to withdraw their application as soon as they learned the true facts. The remedy by appeal being exclusive, the court will grant either equitable or legal relief, or both, as each case may require. And ordinarily equity will relieve against a mere mistake of fact where no-laches is shown and the other party has not materially changed his position relative to the subject matter. We have-here, however, a case where a city is engaged in making important street improvements, in which many proceedings must be timely had by it. The statute (sec. 959 — 31) gives the-option to the property owner to have the time of the payment of his assessment extended upon the express condition, to be-embodied in his application as an agreement, that “in consideration of the privilege granted by such resolution [of extension] the applicant will make no objection to any want of power, illegality or irregularity in regard to the assessment, against his property.” It was within the province of the legislature to grant or withhold the privilege of such an option- Weise v. Green Bay, 143 Wis. 198, 126 N. W. 681. That being so, it could attach such conditions to the exercise thereof by the lotowner as it deemed proper. No doubt the legislature considered that when it gave lotowners a period of thirty days in which to determine whether or not they would apply for an extension, it gave them ample time to inquire into the regularity of the proceedings and to ascertain whether or not their property was subject to the assessment. Having-given adequate time for such investigation, it no doubt also considered that it was reasonable to require them to waive all want of power and any irregularity or illegality as a condition precedent to their enjoying the right of an extension. No lack of knowledge of such waiver can be claimed, for it is expressly embodied in the signed application. So each lot-owner was put to the election of accepting the benefits of an extension and waiving all want of power to make the assessment, or any irregularity therein, or to reject the privilege of extension and retain the right to question both the power to assess and the regularity or legality of the assessment. The privilege granted upon such conditions must be deemed analogous to the right of an election between inconsistent remedies, which when once exercised cannot be withdrawn or changed. True, the city in the instant case may not have materially altered its situation relative to the subject matter between the time of the making of the application and the attempted withdrawal thereof. But were it held that such application, once made, could be withdrawn, it would seriously hamper cities in the subsequent steps to be taken, for they could never know on what property to issue bonds if the applications were subject to withdrawal.

But it is said the city took no action upon the applications before the requests for withdrawal were made. No action by the city was necessary. It had no power to accept or reject the applications at its own pleasure. It had to accept. When properly made, the applications became contracts or agree ments between tbe lotowners and tbe city by force of tbe statute. Tbe city could determine whether or not it would permit extensions at all. But having determined that it would, it was bound to accept all applications that were legally made. It could exercise no discretion as to that, and hence no action on its part to show an acceptance of tbe applications was necessary. Nothing remained for it to do but to issue bonds on all lots covered by applications made in accordance with the statute.

It is deemed that the privilege of extension is an adequate consideration for the waiver required by the statute, and it expressly makes such privilege the consideration, for it says: “In consideration of the privilege granted by such resolution the applicant will make no objection,” etc. The doctrine of estoppel, therefore, is not applicable to the case. The express waiver provided for by Statute controls. A waiver has properly been defined to be “the intentional relinquishment of a known right.” Monroe W. W. Co. v. Monroe, 110 Wis. 11, 85 N. W. 685; Swedish Am. Nat. Bank v. Koebernick, 136 Wis. 473, 479, 117 N. W. 1020. When the plaintiffs presented their applications to the city for an extension they intentionally and voluntarily relinquished the known right to contest the validity of the assessment either because of want of power to make it or because of any irregularity or illegality therein, after having been given a reasonable time in which to investigate their rights relative thereto and ascertain what the facts were upon which they might in whole or in part defeat the assessment. It is true they did not at that time know the facts relative to their ability to successfully contest the assessment, but they did know they had a right to contest it, and they did know that they waived such right by applying for an extension. So they intentionally - relinquished a known right, though in ignorance of the quantum of proof they could produce to sustain it. They cannot now, however, successfully plead their failure to investigate and discover tbe true facts relative to tbe liability of tbeir property to pay tbe assessment before making tbe waiver, because tbey should bave made sucb investigation witbin tbe thirty days given them by tbe law for that purpose. Not having made it then, tbey are bound by tbe election made. Tbe result is tbe case must be affirmed on both appeals.

By the Court. — Judgment affirmed.