Haubner v. City of Milwaukee

101 N.W. 930, 124 Wis. 153, 1905 Wisc. LEXIS 34

• Court: Wisconsin Supreme Court
• Decided: February 21, 1905
• Status: Published

Opinion

The following opinion was filed December 13, 1904:

Cassoday, C. J.

1. Error is assigned because the court refused to consolidate the action at law with the suit in equity, and also refused to try the equity suit first. No such question was suggested until' after the superior court had entered upon the trial of the action at law, nor until after the city had asked and obtained leave to amend its answer, setting up the pendency of the suit in equity in the circuit court, and the city had sought and failed to have the venue in the action at law changed to the circuit court, and the venue in the equity suit had, by stipulation, been changed to the superior court. What occurred in respect to the matter is fully set forth in the foregoing statement, and need not be here repeated. The action at law was simply for damages, and against the city alone. The suit in equity was against the city, its treasurer, and the .contractor, and the prayer was for different relief. The court had stated that the two “cases ought to be tried by one and the same judge.” The court fully appreciated the close relationship between the two cases, and entered upon the trial of the suit in equity immediately upon the action at law being submitted to the jury. Of course, the court had control of the verdict, and so of both cases at the same time. The order in which they should be tried was certainly within the discretion of the trial court. Secs. 2647, 2844, Stats. 1898. The fact that the action at law was first tried did not prevent the court from doing justice to the parties in both cases. We find no reversible error in refusing to consolidate the two actions, nor in trying the action at law befoi’e the suit in equity.

2. It is found by the court, in addition to what is stated above, and is undisputed, that the excavation in front of the plaintiff’s lot was from six to ten feet, leaving a vertical wall of earth of that height along the entire front thereof; that all the lots fronting on the street in question, between Burleigh street and Ring street, except one lot 250 feet north of the plaintiff’s lot, were assessed at a uniform rate per front foot; that the estimated expense of grading the several lots having a frontage of fifty feet varied from $4.20 to $86.70; that such expense in front of the plaintiff’s lot was $79.80; that in making the assessment the several lots were not separately considered and benefits and damages assessed to each lot; that the assessment was not made at the time of viewing the premises, but at a different time and at the office of the board; that the grade of the street in question varied from a fill of six feet to a cut of twelve feet, along various parts thereof; and that the board made a uniform assessment of $3.50 as benefits per front foot along the entire line of the street in question, and awarded no damages for injury whatsoever. Under the decisions of this court, construing the charter of the city, there can be no question but that such assessment was void. Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103; Sanderson v. Herman, 108 Wis. 662, 666-668, 84 N. W. 890, 85 N. W. 141; Friedrich v. Milwaukee, 114 Wis. 304, 90 N. W. 174; S. C. 118 Wis. 254, 95 N. W. 126. This seems to bo conceded by counsel.

3. Error is assigned because the court, prior to the entry of judgment in either case, refused to grant a stay of proceedings and order a reassessment, as prescribed by sec. 1210c, Stats. 1898, as amended by ch. 354, Laws of 1903. Whether such ruling was right is the important question in this case. Prior to that amendment that section provided that:

“If in any action to set aside any special assessment against property for any of the purposes mentioned in section 1210ii [which includes street improvement], or to set aside any special assessment certificate . . . the court determine that such assessment is invalid by reason of a defective assessment of benefits and damages, it shall stay all proceedings in such action until a new assessment thereof be had in the manner hereinafter mentioned; . . . When the amount to be assessed against the plaintiff’s property has been finally determined by an assessment of benefits and damages which the court shall hold to be valid, or when an appeal is taken, the court shall make an order requiring the plaintiff to pay into court, within a time to be fixed by such order, for the benefit of the parties entitled thereto, the amount which, based upon such valid new assessment, he ought justly to pay, or which should be justly assessed against the property in question; upon compliance with said order judgment shall be entered for the plaintiff with costs. If the plaintiff fails to comply with such order the action shall be dismissed with costs.”

In obedience to that section it was held by this court three years prior to that amendment, in effect, that the remedy by appeal to the circuit court for such illegal assessment, provided by the charter of Milwaukee, was not exclusive, but that the aggrieved party might resort to a court of equity. Kersten v. Milwaukee, 106 Wis. 200, 206, 81 N. W. 948, 950, 1103. In that case it was also held that “where, in an action to set aside a special assessment for street improvements, the assessment is held invalid by reason of defects in the assessment of benefits and damages, it is the duty of the court, under see. 1210s, Stats. 1898, to stay proceedings, so far as relates to the assessment of benefits and damages, order a reassessment, and make payment of the amount finally determined a condition of judgment.” That was followed by Sanderson v. Herman. 108 Wis. 662, 666-668, 84 N. W. 890, 85 , decided two years prior to tbe amendment mentioned. Each of those cases was in equity to set aside a special assessment against property for a purpose mentioned in sec. 1210e, as mentioned in sec. 12105, Stats. 1898. In each of those cases the right to a stay of proceedings and a reassessment was expressly sanctioned. In Friedrich v. Milwaukee, 114 Wis. 304, 90 N. W. 174, a complaint for damages on account of such illegal assessment was sustained, and no reassessment was ordered, because it was on demurrer and, as there stated, the cause of action alleged or sought to be alleged was not in equity to enforce a reassessment under the statutes (sees. 1210d—1210/) Stats. 1898), as in the two-cases just mentioned. That decision in Friedrich v. Milwaukee was made by this court more than a year prior to the enactment of ch. 354, Laws of 1903. Subsequently that case was tried on the merits, and a judgment for damages in favor of the plaintiff was affirmed by this court. Friedrich v. Milwaukee, 118 Wis. 254, 258, 95 N. W. 126. That case was argued in this court two weeks prior to that enactment, and decided four, days after that act went into effect. Obviously the decisions mentioned led to the enactment. One of the purposes of that act was to make the statutes apply to actions at law as well as suits in equity. And so it prefixes to sec. 1210e a provision which declares that:

“If in any action at law for the recovery of damages arising from a failure to make a proper assessment of benefits and damages, as provided by law, or failure to observe any provisions of law, or because of any act or defect in any proceeding in which benefits and damages are assessed,” etc. Ch. 354, Laws of 1903.

That is followed by what is quoted from sec. 1210e, above, and also other provisions of that section. By see. 1210e, as thus amended, a complete scheme for reassessment was provided in every case where the special assessment for street improvement was held to be invalid by reason of defects in the assessment of benefits and damages — whether such invalidity be determined in an action at law or in equity. In other words, the right to a reassessment when such invalidity was determined in an action in equity, as held in Kersten v. Milwaukee and Sanderson v. Herman, supra, was, by the statute, as amended by ch. 354, Laws of 1903, also given when such invalidity is determined in an action at law.

4. It is claimed that the amendment was not retroactive, and hence did not apply to either of the cases at bar. That chapter went into effect more than six months prior to the commencement of the action at law, and nearly nine months prior to the commencement of the suit in equity. True, the assessments complained of were made prior to that enactment. But, as indicated, the act merely extended the remedy by reassessment which previously existed when such invalid, ity was determined in an action in equity to the cases in which such invalidity is determined in an action at law. It did not undertake to destroy or impair any substantial right. By its terms it applied “in any action at law” or in equity therein prescribed, and hence applied to the cases at bar.

5. But’ it is claimed that the damage to the plaintiff’s lot by reason of the wrongful acts complained of gave to the plaintiff a right of action against the defendant, which, under the constitutions — state and federal — could not be divested or impaired by subsequent legislation. Secs. 9, 13, art. I, Const. Wis.; sec. 1, art. XIV, Const. U. S. Moreover, it is claimed that such right is not preserved by the statute in question, nor by the city charter, and that there is no provision for paying an award in the lotowner’s favor in case of an appeal. Of course, the provisions of the charter of Milwaukee are to be considered in connection with the statutes mentioned. Neither the charter nor the statute attempts to deprive the lotowner of any damages in excess of the benefits, and hence they are not objectionable on that ground. Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187; Lathrop v. Racine, 119 Wis. 461, 475, 97 N. W. 192. Tints in tRe chapter of tRe charter on “Taking Property for Streets and OtRer Purposes” it is provided tRat:

“If tRe total amount -of damages as assessed, exceeds tlie total amount of benefits as assessed, tRe excess of sucR damages sRall Re chargeable* to and paid out of tRe general city fund and the ward funds of tRe wards in wRicR tRe lands proposed to be taken are situated, in equal proportions.” Sec. 6,. cR. VI.

And again tRat cRapter provides tRat:

“If tlie damages to any person be greater tRan tlie benefits, received, or if tlie benefits be greater tRan tRe damages; in eitRer case tRe board shall strike a balance, and carry tRe difference forward to anotRer column so that the assessment will sRow wliat amount is to be received or paid by such owner or-owners respectively, and the difference only sRall in any case-be collected of them or payable to them" Sec. 8, cR. VI.

It also gives to tRe lotowner tRe rigRt to appeal from sucR assessment to tRe circuit court, upon giving tlie notice and bond prescribed, and provides tRat if upon tRe trial in tlie circuit court

“tRe benefits assessed by tlie said board of public works shall be diminished, or the damages so assessed shall be increased, then and in eitRer case the appellant shall recover costs on such appeal, otherwise the city shall recover costs. When the jury shall, by their verdict, award damages to the owner-of any lot or part of a lot, and judgment shall Rave been rendered upon such verdict, the said city shall pay the amount of such judgment, and the costs, if any, recovered therewith. . . . And in case the appellant shall succeed, the difference between the amount assessed and the amount finally adjudged shall be chargeable to and paid out of the proper ward fund.” Sec. 14, cR. YI.

So in the chapter of the charter on “City Improvements, and Special Assessments” it is provided that “the grading . . . shall be chargeable to and payable by the lots fronting or abutting upon such streets ... to the amoxmt which such grading . . . shall be adjudged by said board to benefit such lots.” Sec. 2, ch. VII. The same section provides for paying certain expenses out of the ward fund. That chapter then prescribes the proceedings essential in “grading or improving streets.” Sec. 6, ch. VII. It then provides for the “assessment of benefits for street work” on lots abutting thereon, “taking into consideration in each case any injury which in the opinion of the board may result to each lot or piece of land from such improvement; and in case the benefits, in their opinion, amount to less than the cost of the improvement, the balance shall be paid out of the ward fund of the ward or wards in which such improvement is made.” Sec. 7, ch. VII. The next section provides for compensation to lot-owners for change of grade, and assessments therefor, and provides that “the excess of the said damages, costs and charges over the benefits assessed, as provided in the preceding section, shall be paid out of the ward funds of the ward or wards in which such improvement and alteration of grade shall be made.” Sec. 8, ch. VII. That chapter then gives to the lotowner the right to appeal from such assessments to the circuit court upon giving the notice and bond prescribed; and then declares that:

“Such appeal shall not affect the rights of the contractor, or the proceedings in reference to his contract, but the certificate against the lot or parcel of land in question shall be given as if no appeal had been taken; and in case the appellant shall succeed, the difference between the amount charged in the certificate and the amount of the benefit finally adjudged, shall be paid by the city out of the proper ward fund, to the appellant, but not until he shall have done the work in question, or have paid the certificate issued for doing the same. The amount assessed by the board of public works, or finally adjudged on appeal, for damages, costs and charges arising from an alteration of the grade, m excess of the amount charged against property deemed benefited, shall be paid by the city out of the proper ward fund, to the person or persons thereto entitled,” as therein provided. Sec. 11, ch. VII.

It is true that the charter provides that such appeal shall be the lotowner’s only remedy for such damages. Sec. 15, ch. VI; sec. 12, ch. VII. ' But such provisions in the charter could not prevent the legislature from providing otherwise, as they did by sec. 1210e, Stats. 1898, as held by this court in the eases cited. Kersten v. Milwaukee, 106 Wis. 200, 81 N. W. 948, 1103; Sanderson v. Herman, 108 Wis. 662, 84 N. W. 890, 85 N. W. 141. In those cases it was held that the right to appeal given to the lotowner by the city charter was not exclusive, but that the person aggrieved might resoi’t to a court,of equity; and now, under ch. 354, Laws of 1903, he may resort to reassessment in a court of law. As already indicated, the statute declared before and since that amendment, in effect, that when

“an assessment of benefits and damages’7 has been held to be valid by the court, “or when an appeal is taken, the court shall make an order, requiring the plaintiff to pay into court, . . . for the benefit of the parties entitled thereto, the amount which, based upon such valid new assessment, he ought to justly pay, or which should be justly assessed against the property in question; upon compliance with said order judgment shall be entered for the plaintiff with costs. If the plaintiff fails to comply with such order the action shall be dismissed with costs.”

It will be observed that the lotowner is only required to pay into court the amount he ought justly to pay according to such new and valid assessment, and that such payment is to be for the benefit of such parties as the court may adjudge to be entitled thereto. Of course, the rights of the contractor are to be considered, the same as though the lotowner had appealed to the circuit court from the assessment under sec. 11, ch. VII of the charter, mentioned above. So the money so paid into court is to be finally disposed of by the court, sitting as a court of equity, to the parties entitled thereto. The amount finally adjudged for damages, costs, and charges, “in excess of the amount charged against property deemed benefited, shall be paid by the city out of the proper ward fund, to the person or persons thereto entitled,” the same as though the owner had appealed to the circuit court, under the section of the charter last cited. Where a municipality is thus made liable to the lotowner for any damages sustained in excess of such benefits, the taxable property of such municipality constitutes a pledge or fund to which the owner may resort for payment in the manner prescribed by the statute. Norton v. Peck, 3 Wis. 714, 724; Brock v. Hishen, 40 Wis. 674; Smeaton v. Martin, 57 Wis. 364, 15 N. W. 403, and cases there cited; Smith v. Gould, 59 Wis. 641, 18 N. W. 457; State v. Hogue, 71 Wis. 390, 36 N. W. 860; State ex rel. Burbank v. Superior, 81 Wis. 654, 51 N. W. 1014. We perceive no invasion of the plaintiff’s supposed constitutional right to damages by reason of such proposed reassessment. We must hold that the court improperly refused to stay proceedings and direct a reassessment as prescribed by sec., 1210e, as amended by ch. 354, Laws of 1903.

By the Gourt. — Both of the judgments of the superior court of Milwaukee county are reversed, and the causes are both remanded for further proceedings as indicated in this opinion.

The appellants moved for a rehearing. The motion was denied February 21, 1905, and the following opinion was filed:

The fifth subdivision of the opinion filed in this case is not as explicit as it should have been. It seems to have misled counsel on both sides. This may be the result of a failure to appreciate that what was said in that portion of the opinion was by way of answering the contention that the plaintiff’s right to damages was not preserved by sec. 1210e, Stats. 1898, as amended by ch. 354, Laws of 1903, “nor by the city charter,” the “provisions” of which were “to be considered in connection with the statutes mentioned.” Tbe several provisions of tbe charter quoted in. tbe opinion were merely to indicate tbe general scope and statutory policy as to benefits and damages to tbe abutting lotowner when tbe city bad proceeded regularly as prescribed by the statutes. Tbe statement in tbe opinion that “neither tbe charter nor tbe statute attempts to deprive tbe lotowner of any damages in excess of tbe benefits” does not mean that it confers any right to such damages which did not exist at the time of tbe enactment of ch. 354, Laws of 1903. Certainly none are given either by statute or common law in case of original grading done lawfully and regularly. In this case tbe city did not proceed regularly, as prescribed by law, and hence for that reason became liable for the consequential damages proximately caused by tbe improvement. Drummond v. Eau Claire, 85 Wis. 556, 55 N. W. 1028; Jorgenson v. Superior, 111 Wis. 561, 87 N. W. 565; Friedrich v. Milwaukee, 114 Wis. 304, 90 N. W. 174; Bunker v. Hudson, 122 Wis. 43, 99 N. W. 452, and cases there cited; Damkoehler v. Milwaukee, ante, p. 144, 101 N. W. 707. Tbe plaintiff’s right to such damages could not be taken away by tbe subsequent amendment of sec. 1210e, State. 1898, by ch. 354, Laws of 1903, although it could provide for a reassessment of tbe amount of benefits secured to tbe lotowner, and which be ought to pay to tbe city. If, when so ascertained, they are less than tbe legal damages to which tbe plaintiff is entitled, the ward funds of tbe ward in which tbe improvement is made are clearly liable for tbe excess. Sec. 7, ch. VII, Milwaukee Charter. Counsel contends that there are no benefits in this case, but that is a question to be determined in such reassessment proceedings prescribed in sec. 1210e, Stats. 1898, as amended by ch. 354, Laws of 1903. Of course, the mandate is to be construed as referring to this opinion as well as to tbe original.

KeewiN, L, took no part in tbe decision of this case.