Thielen v. Metropolitan Sewerage Commission

189 N.W. 484, 178 Wis. 34, 1922 Wisc. LEXIS 22
CourtWisconsin Supreme Court
DecidedJuly 8, 1922
StatusPublished
Cited by18 cases

This text of 189 N.W. 484 (Thielen v. Metropolitan Sewerage Commission) 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
Thielen v. Metropolitan Sewerage Commission, 189 N.W. 484, 178 Wis. 34, 1922 Wisc. LEXIS 22 (Wis. 1922).

Opinion

Rosenberry, J.

The plaintiffs are residents, electors, property owners, and taxpayers, residing in the town of Greenfield, Milwaukee county, and within the limits of the proposed Metropolitan sewerage district, and bring the action in their own behalf and in behalf of all other property owners and taxpayers of Milwaukee county similarly situated.

[47]*47The first contention made on behalf of plaintiffs is that by the language of sub. 5 of sec. 1 of ch. 554, Laws 1921, reference is made to maps and surveys then in existence; that the maps and surveys referred to in the second finding of fact were prepared at the direction of the Milwaukee Sewerage Commission at a time subsequent to the passage and publication of ch. 554, and the action of the Metropolitan Sewerage Commission was not in compliance with the act.' There is nothing in the language of the act itself indicating that reference was had by the legislature to any existing maps or surveys. How could a map or survey be prepared which would form the basis of action by the Metropolitan Sewerage Commission in fixing and establishing boundaries of the proposed sewerage district unless and until the legislature had specified in general terms at least what territory should be included therein? The area to be embraced within the proposed district was “the portion of said county which is within the same drainage area as the sewerage system of such city of the first class, the sewage from which may be cared for by the disposal plant located in such city of the first class.” Manifestly, it was intended to include within the proposed district territory other than that within the natural drainage area within which the sewerage system of. the city of Milwaukee was situated, and to include therein such additional territory as might be cared for by the sewage disposal plant located in the city of Milwaukee. So whether the maps and surveys submitted to the Metropolitan Sewerage Commission by 'the Sezuerage Commission of the city of Milwaukee were made before or after the enactment of ch. 554 is immaterial, if they in fact did show the portion of the county which was within the same drainage area as the sewerage system of the city of Milwaukee, the sewage from which might be cared for by the disposal plant of the city of Milwaukee.

The trial court found that a portion of the territory [48]*48within the boundaries of the Metropolitan sewerage district at the present time consists largely of farming communities, with no large factories, and that there is at the present time no need of intercepting sewers. It is argued that the territory referred to in such finding will therefore receive no benefit from the construction of the proposed improvement and therefore no tax can be legally imposed upon it, citing State ex rel. Owen v. Donald, 160 Wis. 21 (151 N. W. 331), at p. 125. We do not think the conclusion reached by counsel necessarily follows from the facts stated in the finding. It is conceded that the territory in question is suburban in character. The court found that the Metropolitan Sewerage Commission considered the past, present, and prospective future growth and development of the cities, villages, and industries in the sewerage district and considered the necessity of planning and constructing a system of intercepting sewers which would be reasdnably sufficient in size and capacity to care for and handle the prospective needs of the district, and that in so doing the Commission exercised their best judgment and acted in good faith. How can it be said that no benefit accrued to the property owners in the territory to be served by the proposed sewerage system ? It may well be that the benefits will be more immediate and direct in some cases than in others. It is plain that to construct a system which would be sufficient to provide for present needs only would be little short of folly. When the great intercepting sewers are, once constructed their capacity cannot be enlarged excepting by rebuilding them at enormous expense or- paralleling them with a second system. The legislature required that provision be made so that as additional use develops by reason of the extension of manufacturing districts or increasing density of population, it may be provided for at a minimum of public expense. Looking at the matter in the light of experience and taking into consideration the reasonable probabilities of the future, it must be said that [49]*49the property embraced in the sewerage district receives a present benefit which fully justifies the exercise of the taxing power in this case. That matters of this kind should be dealt with in a large, comprehensive way, rather than in detail and piecemeal as the imperative necessity arises, seems apparent on a moment’s consideration.

By the fourth finding the trial court determined that all of the territory within the boundaries of the Metropolitan sewerage district as established by the Commission lies within the natural water-shed of the Milwaukee river, and its tributaries except certain districts referred to in sub. (a), (b), and (c) of the fourth finding. It appears from the evidence that in these instances certain territory is included, the sewage from which would be carried to the sewage disposal plant of the city of Milwaukee, although not within the natural drainage basin. In determining what the boundaries of the sewerage district should be, the Metropolitan Sewerage Commission proceeded in the exercise of a power clearly conferred upon them by ch. 554. We are in effect asked to review the finding of the trial court and to a certain extent the determination of the Metropolitan Sezverage Commission and to substitute our judgment for that of the Commission as to the location of the boundary line of the district. It must be borne in mind that in fixing the boundaries of the district wherever fixed, there would be property upon one side of the line which was erroneously placed. If the line were placed too close to the populous centers, territory would be excluded from the district which clearly belonged within it. If placed too far from the densely populated regions, territory would be included which perhaps, strictly speaking, did not belong in a sewerage district. The boundary line must be established somewhere, and for its establishment there must be some competent authority. The legislature in a general way fixed the boundaries of the district as before stated. The Sewerage Commission, as appears by the maps [50]*50and surveys in evidence, substantially complied with the legislative mandate. In some instances in following quarter-section lines so as to provide a workable scheme for the levying of the tax provided for in ch. 554, parts of quarter-sections were included which are not, strictly speaking, within the designated area. Other parts of quarter-sections were excluded which may, strictly speaking, be within the designated area. The Metropolitan Sezuerage Commission evidently followed with as much fidelity as is reasonably possible the legislative command in establishing the boundaries of the” district, and unless there is a substantial -departure from the legislative scheme we see no grounds upon which this court can or should interfere with that determination. The problem presented to the Metropolitan Sewerage Commission was one of engineering, and their determination is in the last analysis a determination of fact, and where there has been a substantial compliance with the legislative command no question of law is presented.

In the territory referred to in sub.

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Bluebook (online)
189 N.W. 484, 178 Wis. 34, 1922 Wisc. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thielen-v-metropolitan-sewerage-commission-wis-1922.