Rork v. Smith

12 N.W. 408, 55 Wis. 67, 1882 Wisc. LEXIS 111

• Court: Wisconsin Supreme Court
• Decided: May 10, 1882
• Status: Published

Opinion

Tayloe, J.

On the part of the appellant it is contended that the common council had no power to charge his lot with the payment of this alleged special tax in tbe first instance, or by way of a reassessment or relevy thereof. This raises two questions: 1. Was the original assessment authorized by law ? 2. If it was not, was the judgment of the circuit court commanding the common council of said city to reassess and relevy the same an erroneous judgment ?

It will be seen, by an examination of the decision of the learned circuit judge, that he does not in his conclusions of law express any opinion upon the question as to the legality or validity of the tax as originally assessed upon the property of the plaintiff. He simply holds that the first judgment setting aside the tax and enjoining its collection is not binding upon the defendant Reeder Smith, because he was not a party thereto, and was at the time the owner of the claim for the payment of which the tax was assessed; and he also holds that the plaintiff was not bound by the m<m-damns proceedings, because he was not a party thereto. In both these conclusions of law we are of the opinion the learned circuit judge was clearly right. In the case of the mandamus proceedings it seems to us very clear that the common council did not represent the rights of the plaintiff. The proceeding was a direct proceeding to charge the plaintiff’s property with the payment of a claim owned by the defendant Reeder Smith, and which he claimed was chargeable to and payable out of the property of the plaintiff. The plaintiff was the only one interested, in resisting the claim of Smith; and if he can be barred of his right to contest the validity of the charge by a proceeding to which he is not a party and of which he has legally no knowledge, it would seem to be contrary to the well settled rule of law that no person is bound by any judgment in an action to which he is not a party unless he claims his right under some one who was a party thereto. This case cannot be governed by the rule which binds all the tax-payers of a municipality by the judgment of a court of competent jurisdiction declaring that the claim of the party against it is a valid claim. In the case of a claim made against the city, town, county or other municipality, the claimant cannot make the tax-payers, to whose property he must ultimately resort for the payment of his claim, parties to his action to determine its validity; and the municipality in its corporate capacity is the party with which the contest must be made. In an action of that kind the municipality, by its officers, represents the rights of the tax-payers whose property must ultimately pay the demand. The claim, in such case, is a claim against the municipality and not against the tax-payers; but when established against the municipality, the property of the tax-payer becomes bound to pay his quota of the tax necessary to discharge the debt. This is all that was determined in the case of Clark v. Wolf, 29 Iowa, 197, cited by the learned counsel for the respondent. ■ In the case at bar, Smith had no claim against the city of Appleton; he had simply the right, if he had any right, to invoke the action of the city authorities to aid him in enforcing his claim against the property of the plaintiff; and the fact that he compelled them to act' by the writ of mcmdamus‘ can give no more force to their action than if it had been done voluntarily, unless the party to be affected by their action was also made a party to the proceeding. They were the mere agents of the holder of the claim to enforce it against the plaintiff; and if they had no legal right to enforce the claim, the plaintiff must have the right to contest its validity when the attempt to enforce the same is made in a way which affects his rights.

Although the learned circuit judge did not find, as one of his conclusions of law, that the special assessment was illegal and void when originally levied upon the plaintiff’s property, and that the former judgment vacating the same, and perpetually enjoining the collection thereof, was a proper judgment under the proofs, yet he finds, under the head of findings of fact, in the fifteenth finding, as follows: “Although tbe work contracted to be done and performed by Peter Berg as aforesaid was not fully and completely performed by said Harriman, bis assignee, yet said Ilarriman was only paid or settled with for the amount of work actually performed; and the court finds that there was no fraud in any of the foregoing enumerated proceedings, and the land of the plaintiff aforesaid was properly assessable, and the sum mentioned in said street certificate,’to wit, $81.11, was a proper amount which should have been assessed against said land had all the proceedings been regular, and the same on reassessment became legal, regular and binding, and all previous irregularities and defects do not affect its validity.”

This finding, which is a mixture of fact and law, by implication, at least, finds that the original assessment was irregular and void, and was properly enjoined, but in effect holds that because there was no fraud in fact perpetrated or intended either by the contractor or the council, and because the value of the work done on the street amounted to the sum of $81.11, it was properly reassessable upon the plaintiff’s land. The facts in the case are briefly these: (1) On the 8th of July, 1873, the common council passed a resolution directing the city engineer to furnish plans and specifications for grubbing, grading and ditching the street in question, and directing the city clerk, immediately after the same should have been placed on file, to order the completion of said work within ten days. (2) On the 13th of August, 1873, the clerk was directed to advertise for sealed proposals for grading, grubbing and ditching such street according to plans and specifications on file. (3) On the 23d of August, 1873, a contract was entered into with Peter Berg for grading and grubbing said street. (4) On the 27th of May, 1874, the common council passed a resolution annulling such contract for nonfulfillment thereof. (5) The work was not done according to contract as to the amount of work to be done, nor according to the plans or specifications adopted by the council. (6) The clerk of the city, without any apparent direction of the common council of said city, and after the passage of the resolution annulling the contract under which the work was done, issued a certificate to J. E. Harriman, the assignee of the Berg contract, certifying that he had done work to the amount of $81.11, which was chargeable to the said plaintiff’s land; and on November 21, 1874, the clerk made a report to the common council of said city in writing, with a schedule of lots and lands subject to special taxes and assessments to be levied against said lots and lands, and in such schedule was included the land of the plaintiff charged with the said special assessment of $81.11 for grading under the contract with Peter Berg. Thereupon the common council, by resolution duly entered in their minutes, assessed against said real estate of the plaintiff the said sum of $81.11 as a special tax for the work done under said Berg contract. (7) The said special tax was inserted in the tax roll for said year as a tax on said plaintiff’s land. (8) The amount of said special tax, it seems, although the evidence is not very clear on that point, was agreed upon by the said Harriman, who did the work, and some of the officers, as a compromise and settlement for the work done under the Berg contract.

Upon this point the learned circuit judge found as follows: “ When Harriman had completed the job, the city surveyor refused to accept the same, claiming that the work was not done in accordance'with the plans and specifications; and afterwards the said city surveyor made a survey and estimate of the quantity and amount of the work left undone on said job. This was made under the order of the common council of the city of Appleton; and afterwards the city of Appleton, by its officers, accepted the job, and settled for it, ly wap of compromise, by allowing therefor an amount equal to the amount and quantity of work done thereon, as estimated by the city surveyor; and on this basis the common council of the said city of Appleton ordered certificates and orders to be issued by the city clerk, and among the certificates and orders so issued was the one described in the complaint against the plaintiff’s land, for $81.11, bearing date November 21, 1874. If the work had been fully completed at the contract price of 35 cents per cubic yard instead of 25 cents, as estimated by the city surveyor, then 888 yards, and excavating at 35 cents, is $310.80, one-half of which is $155.40, and add $30.50 for grubbing, making the sum $189.90, as chargeable to the plaintiff’s land; instead of which amount the plaintiff’s land was only charged ,with $81.11, the estimated amount of work done only.”

This finding was excepted to by the appellant, and whether it is sustained in its entirety by the proofs, it is difficult to determine from the evidence presented to us. Ye think, however, it is substantially sustained in its material facts. This tax so assessed upon the plaintiff’s land was set aside, and its collection enjoined, in the plaintiff’s action against the county and its treasurer, by the judgment of the circuit court, November 22, 1876.

This judgment was undoubtedly correct, for at least two reasons: (1) Because the city clerk did not give any notice to the owners of the lots which were to be charged with the cost of grading, grubbing and ditching, requiring them to do the work within a reasonable time, before advertising for proposals for contracts to do the work, as required by section 5, subch. 7, ch. 268, Laws of 1865, as amended by section 11, ch. 287, P. & L. Laws of 1870. (2) Because there is no pretense that the special tax was assessed upon the plaintiff’s land in payment for work done in grading, grubbing and ditching the street in question, according to the plans and specifications adopted by the common council in relation thereto. On the contrary, the evidence clearly shows that the 'work was not done in accordance with the plans and specifications so adopted, nor in compliance with the contract made by Berg with the city for doing such wort. Nor is there any evidence tending to show that the grading, grubbing and ditching on said street has ever been done and completed according to the plans adopted by the common council for doing the same; and the fair inference from the whole evidence is that it never has been completed, but has been abandoned by the city. The tax was assessed to pay one-half a sum which was the estimated value of the work done on the street by the assignee of -Berg, not in accordance with the terms of his contract, nor according to the plans and specifications adopted by the common council for grubbing, grading and ditching said street, but in violation and disregard of both. Under the charter of the city of Appleton, the common council had no authority to let any contract for grading and grubbing the street in front of plaintiff’s lot, until notice had been first given to the owner requiring him to do the same as required by said section 5, subch. 7, above cited. The want of this notice was a jurisdictional defect, and renders all subsequent proceedings void. This court so held in the case of Johnston v. City of Oshkosh, 21 Wis., 184. The late learned Chief Justice Dixon, in his opinion in that case, says the want of such notice “is an insuperable objection to the validity of the taxes for the nonpayment of which the deed was executed. The street commissioners had no power to enter into a contract without having given the notice.” He cites Kneeland v. Milwaukee, 18 Wis., 411. The charter of the city of Oshkosh is substantially the same as that of Appleton upon the subject of giving notice to the owners before letting contracts. See section 6, subch. 7, ch. 133, P. & L. Laws of 1856. Upon the point whether the giving of such notice should be deemed merely directory under the provisions of said charter, section 19, subch. 18 of said chapter 133, which provides that “ all directions given in the charter for the assessing of lands, and the levy and collecting of taxes and assessments, shall be deemed only directory, and no error or informality in tbe proceedings of any of the officers entrusted with the same, not affecting the substantial justice of the tax itself, shall vitiate or in any wise affect the validity of the tax or assessment,” the learned chief justice said: “ It is contended for the plaintiff that the giving of the notice is only directory, and that the omission does not avoid the tax. It is obvious that the provisions of this section do not apply to the notice, but are intended to govern the proceedings of the officers after the debt or liability for which the taxes are assessed or levied has once been lawfully created. Without any debt or liability the very groundwork of the tax is wanting, and there can be no valid assessment or levy. As well might the municipal authorities attempt to assess or levy a tax without any improvement having been directed at all, or without its having been made. But if this section does apply to the notice, it is still within the exceptions contained in the section itself. Every one having had the slightest experience in such matters knows that the right reserved to the owners and occupants to make the improvements themselves is a substantial right, and one which cannot be dispensed with without very great danger of oppression and injustice.”

The doctrine of this case has been affirmed by this court in Canfield v. Smith, 34 Wis., 381; Pound v. Supervisors, 43 Wis., 63; Hall v. City of Chippewa Falls, 47 Wis., 267; Massing v. Treasurer of Dane County, 37 Wis., 645; State ex rel. Flint v. Fond du Lac, 42 Wis., 287.

The second objection to the assessment seems equally fatal to its validity. Under the charter the city authorities have the power to impose a charge upon the real estate of its citizens for the purpose of improving its streets, in favor of the person who does the work in making such improvement. In most cities the whole cost of the improvement is chargeable to the lot fronting the street improved. In the city of Appleton but one-half the cost is so chargeable. To make such, charge a valid tax or claim, on the property of the citizen, certain prerequisites are necessary. The proper city authorities must first determine that the improvement shall be made; then they must determine the plan upon which it shall be made, so that an estimate of its cost .can be made; and an estimate of such cost must be made; then notice to do the work must, as we have seen, be given to the owner; and if, after such notice, he fails to do the work, the work must be advertised and let to the lowest bidder. A contract must be entered into with such bidder binding him to do the work according to the plans and specifications ; and when the work is done according to such plans and specifications, then, and not till then, the land of the citizen may be charged with his share of the cost of such work. If, after going through all this work, and after letting the contract, the contractor may refuse to do the work in accordance with the plans and specifications adopted by the proper authorities, and may do the work according to a plan of his own, and refuse to perform his contract, and still charge the citizen with the value of the work done, if he is fortunate enough to get the consent of the authorities of the city to recognize his plan of doing the work, and get them to levy a tax to pay him therefor, then none of the requirements of the statute directing how the streets may be improved are of any binding force, and every real estate owner will be at the mercy of the city officials, and may be compelled to pay for any work which another citizen may see fit to do upon the street in front of his property.* If this can be done, then that will have been accomplished in fact which Chief Justice DixoN exclaimed against as absurd in the language above quoted. “As well might the city authorities attempt to assess or levy a tax without any improvement having been directed.” It is clear, from the evidence and findings in this case, that the improvement, as made by the contractor, was never directed by the city authorities, and if the owner must pay for work done, not in execution of the plan adopted by the city, but in execution of a plan adopted by the person doing the work, then he is compelled to pay for an improvement never directed by the city. We do not think a charge of this kind should be tolerated. Every contractor who does work in improving or grading a street in a city where the cost of said improvement or grading is chargeable to the owners of the abutting lots, and where he is compelled to resort to a special assessment upon such lots for his pay, or any portion thereof, must see to it that the proceedings of the city authorities in directing the same are regular, in those matters at least which are essential. The authorities are in some sense his agents in fixing the charge upon the adjoining property for his benefit, and if they proceed irregularly he is to suffer from such irregularity; and especially he should suffer when he causes the irregularity himself by neglecting or refusing to carry out the plan of the improvement adopted by the authorities, and which, by his contract, he agreed to carry out.

It being clear that the original tax was irregular and void, it only remains to be seen whether there was any authority for reassessing and relevying the same under the provisions of chapter Yl, Laws of 18Y4. This chapter, so far as it gives the power to reassess and relevy a tax which has been declared void for some irregularity, is substantially a reenactment of chapter 132, Laws of 1868, as amended by chapter 52, Laws of 18Y0, with the following words of limitation .inserted, which were not found in the previous chapter, viz.: “if the lands were,properly assessable, and the tax was the proper amount which should have been assessed against such lands.” If the word “ assessable,” in the above limitation, means chargeable with the particular tax sought to be reassessed and levied thereon, as we think it clearly does, then we are very clear that this sum of $81.11 could not be lawfully reassessed thereon, for the reason that said sum never was a tax chargeable to said lot. We think it is also excluded by ¿¿re other limitation that the tax set aside and sought to be reassessed was the proper amount which should have teen originally charged to said la/nds. As we have said above, the city authorities have no power to charge the plaintiff’s land with any amount as a special tax for doing work in grading the street in front of his lot, unless such gradmg was done in substantial accordanqe with plans and specifications previously adopted by the city authorities. .There is no power vested in the city authorities to charge a lot owner with the cost of work done on the street in front of his lot, except when it is done in the execution of some plan previously adopted for the improvement thereof. We are .very clear that this statute was never intended to, and does not, authorize the city authorities to charge the owner of real estate with a special tax for the benefit of a. contractor who has refused and neglected to perform the work contracted to be done in accordance with his contract, by way of a reassessment. When it appears that the charge sought to be enforced as a special tax is in'no sense a charge upon the land' of a citizen, and it has been set aside and enjoined for that cause, it cannot be converted into a lawful charge by the process of reassessment. Such a case' does not come within the meaning of the reassessment act. The difficulty with this charge sought to be relevied as a special tax is something more than an irregularity or an omission to comply with the forms of law within the meaning of said statute. There is, in fact, no tax to be reassessed or relevied.

If there had been no other irregularity in this case except the want of the notice to the owner of the property to do the work before the contract was let, and the evidence had clearly shown that the work had been done in all respects in accordance with the plans and specifications adopted by the proper authorities, and that the amount charged for the performance of the work was a just and fair compensation therefor, I am not prepared to say that it might not have been properly reassessed upon the plaintiff’s land under the statute; but the facts in this case do not present that question for our consideration. The right to reassess a tax under the provisions of chapter 132, Laws of 1868, as amended by chapter 52, Laws of 1870, has been considered in this court in the cases of Dean v. Charlton, Treasurer, 23 Wis., 590, and Dean v. Charlton, Treasurer, 27 Wis., 522. In the first case, the late learned Justice Paine, in considering the question whether the tax. declared void in that case could be reassessed under the provisions of said chapter 132, Laws of 1868, used the following language: “The position'is based upon the provisions of chapter 132 of the general laws of 1868. But that merely provides that where any taxes or assessments have been set aside or declared void by any court in consequence of any irregularity or neglect to comply with the law in the proceedings, it may be afterward reassessed. It applies, therefore, obviously only to such taxes and assessments as were authorized hy law. Where there is any irregularity or defect in assessing these, they may be reassessed. But it would be a strange use, or abuse, of such a statute to say that it would extend to the assessment of a tax which ivas defective, not on account of mere irregularhy in the proceedings, but for an entire want of authority. That is the ground of the objection to the tax here in question, and this statute has, therefore, no application to it.”

In the second case, Justice LtoN, in commenting upon the same law, as well as upon chapter 316, P. & L. Laws of 1869, says in reference to chapter 132, Laws of 1868, that it only authorizes a reassessment (1) for any irregularity in any of the proceedings in levying the same; and (2) for any omission to comply with the forms of law under which it was levied or assessed; and then, in speaking of the power to reassess the tax set aside in that case, he uses the following language: “ They were not set aside merely because of any suob irregularity, omission, or non-compliance, or for any other more non-feasance, but for a palpable misfeasance; for a plain violation of the provisions of law in fraud of the rights of the plaintiff and to his injury. . . . This is not the case of a mere irregularity in the proceedings, nor of an omission to comply with the forms of law, nor yet of a mere non-compliance with the provisions of the law, Tout it is a case of positive violation of the 1cm in a material mid vital point; and to construe this statute as authorizing the relevy and reassessment of such taxes upon the lots of the plaintiff would in my opinion not only violate the rule of strict construction before laid down, but would pervert the intention of the legislature as expressed therein.”

Whether the remarks of Justice LyoN in this case as to the construction which should be given to chapter 316, P. & L. Laws of 1869, have been in any way modified by the subsequent decisions of this court in the cases of Mills v. Charleton, 29 Wis., 400; Dean v. Borchsenius, 30 Wis., 236; and Evans v. Sharp, 29 Wis., 564, is wholly immaterial in the consideration of this case. It is certain that the opinions of this court in the two cases first above cited, as to the construction which should be given to chapter 132, Laws of 1868, have never been questioned; and we have no disposition to question their correctness as applicable to the facts in the case at bar.

We are clearly of the opinion that the claim of Berg or his assignee for compensation for work done upon the street in front of the plaintiff’s lot, awarded to him by the common council of the city upon a compromise, when it is clearly shown that the work was not done either in accordance with his contract or with the plans or specifications adopted by the common council for grading and grubbing said street, is in no sense a special tax, and there is no more power in the common council to charge the plaintiff’s real estate with the payment thereof, than there is to charge his property with tbe entire payment of any other claim made for work done for the city. To charge the lot owner with the cost of work done upon the street, it must at least be shown to have been done in execution of a plan adopted for the improvement of such street. This the evidence in this case fails to show; and the attempt to reassess it on plaintiff’s land was illegal.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded, with directions to such court to grant the relief prayed for in the complaint.