Warner v. City of Ashland

Wisconsin Supreme Court

Warner v. City of Ashland

142 N.W. 513, 154 Wis. 54, 1913 Wisc. LEXIS 218

DecidedMay 31, 1913

StatusPublished

This text of 142 N.W. 513 (Warner v. City of Ashland) 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

Warner v. City of Ashland, 142 N.W. 513, 154 Wis. 54, 1913 Wisc. LEXIS 218 (Wis. 1913).

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Opinions

Vinje, J.

That the proceedings of 1907 could he used as a basis of letting a contract in 1909 is supported both by authority and reason. In Wright v. Forrestal, 65 Wis. 341, 27 N. W. 52, a part of the improvement was let under a separate contract four years after the first contract was let. The statute gives the proper authorities the power to reject any or all bids (secs. 925 — -187, 925- — 90), and no time within which the work must be undertaken or completed is prescribed. It is a matter of common knowledge that, especially in northern cities, the paving of a street for a number of blocks is a work that requires practically a whole season to complete, and that, owing to labor conditions or the price of materials, it may not be deemed advantageous to undertake the work in any given year. When the council concluded on October 8, 1907, to reject the Barber Asphalt Company bid it was then too late to readvertise for bids that season. The record is silent as to why no bids were advertised for in ■1908. Early in June, 1909, however, the board was directed to advertise for bids, and it did .so, with the result that the bid of Mr. Hill was accepted and the contract awarded to him. The proceedings of 1909. were not new proceedings, [58]*58but merely continuations of those of 1907, taking up the latter where they were left after the rejection of the lowest bid received that year. The power to act under proceedings had a year or two previously is unquestioned. To hold otherwise would be to subject municipalities to needless waste of time and money in instituting new proceedings every time an acceptable contract could not be secured the season the proceedings were had.

Plaintiff claims that an appeal lies from the final apportionment by the city council of the exact amount that is chargeable to a specific parcel as based upon an accepted bid. This is erroneous. The statute provides that the board of public works shall make a final report in which there shall be an assessment of benefits and damages accruing to each parcel of real estate by reason of the proposed improvement. Secs. 925 — 178, 925 — 179. Notice of action upon this final report by the council is provided for, and the council may then confirm or correct the report or refer it back to the board for further consideration. Sec. 925 — 181. The council in acting upon such report must make a final determination of the benefits or damages to be assessed to the real estate in case of a proposed improvement, and a notice thereof is required to be published. Sec. 925 — 183. The next section (925— 184) provides that “if the owner of any parcel of land mentioned in said notice feels himself aggrieved by reason of the determination made by the council he may, within twenty days after the date of such determination, appeal therefrom to the circuit court,” and the following section provides that “the appeal given by the last section from the report of the hoard of public works as confirmed by the council, shall be the only remedy,” etc. These two sections, as well as the statutes taken as a whole, clearly indicate that the appeal must be taken from the assessment of benefits and damages and not from an apportionment of a specific amount based upon a particular bid. The practice in many cities is not to [59]*59advertise for bids -until the final report of the hoard of public works is confirmed by the council, or in a particular case it may not be expedient or possible to do so. The assessment of benefits fixes the maximum amount that may be charged against a given parcel for the proposed improvement. It does not fix the exact amount. That cannot be done until a bid has been accepted and the amount chargeable to the city has been determined as provided in see. 925 — 182. Hardy v. Waukesha, 146 Wis. 277, 131 N. W. 352. Then an apportionment of the total cost chargeable to the property is made and assessed against each parcel in proportion to the benefits assessed. But the appeal lies not from such apportionment of the cost, but from the assessment of benefits. The final apportionment of the actual cost may not be made until long after the assessment of benefits has been made — in this case nearly two years. When the assessment of benefits is made the owner of each parcel is advised of the maximum amount that may be charged against such parcel, and if he thinks it too large he has his remedy by appeal. If the appeal were from the apportionment of the actual cost, then whenever a contractor whose bid had been accepted defaulted and a new contract had to be entered into and a different apportionment made, it would involve a new appeal. The statute contemplates but one appeal. Sec. 925 — 90 provides that when no proper bids shall be received, the council by a two-thirds vote of all its members may direct that the work be done under the supervision of such officer or officers as it shall designate. Here no apportionment could be made until a long time after the notice in sec. 925 — 183 is required to be published. It seems clear, therefore, that the statute contemplates that the appeal must be from the assessment of benefits and not from the apportionment of the actual cost, whether done by a contractor or by the city.

This brings us to the question of whether or not the council actually repealed the confirmation of the report of the [60]*60board of public works dated August 20, 1907. We shall assume for tbe purposes of tbe case that it had the power to do so, although that is not decided. As shown in the statement of facts, resolution No. 582 of August 20, 1907, contained a confirmation of the report of the board of public works and also an apportionment of the actual cost chargeable to the property based upon the acceptance of the Barber Asphalt Company contract which was accepted by resolution No. 574. The resolution of August 10, 1909, confirms the report of the board of public works which was already confirmed by the council on August 20, 1907, and then says: “Resolved further, that resolution No. 574 and 582, relating to- the apportionment of the cost of the proposed pavement on Seventh Avenue West, be and are hereby repealed.” This must be construed as a reconfirmation of the report of the board of public works and a repeal of only so much of resolution No. 582 as related to the apportionment of the cost based upon the Barber Asphalt Company contract. This is the result of what the council actually did, and that they so construed it is evidenced by the fact that no further notice of final determination was published. The council well understood that it was proceeding with the matter of paving Seventh Avenue West under the proceedings of 1907 and that the only thing that stood in its way was the resolution accepting the Barber Asphalt Company contract and the apportionment of cost based thereon. It was not necessary to reconfirm the report of the board of public works, but out of abundant caution, perhaps, the council did so. After the expiration of twenty days from the date of the final determination made by the council on August 20, 1907, due notice thereof having been published, the right to appeal was extinguished. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986.

It may be a serious question whether the time within which an appeal may be taken as prescribed by sec. 925 — 184 [61]*61is contingent upon the publication of tbe notice of final determination required to be published by sec. 925 — 183. Sec. 925 — 184 provides tbe appeal may be taken “within twenty days after tbe date of such determination,”

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Vinje, J.

That the proceedings of 1907 could he used as a basis of letting a contract in 1909 is supported both by authority and reason. In Wright v. Forrestal, 65 Wis. 341, 27 N. W. 52, a part of the improvement was let under a separate contract four years after the first contract was let. The statute gives the proper authorities the power to reject any or all bids (secs. 925 — -187, 925- — 90), and no time within which the work must be undertaken or completed is prescribed. It is a matter of common knowledge that, especially in northern cities, the paving of a street for a number of blocks is a work that requires practically a whole season to complete, and that, owing to labor conditions or the price of materials, it may not be deemed advantageous to undertake the work in any given year. When the council concluded on October 8, 1907, to reject the Barber Asphalt Company bid it was then too late to readvertise for bids that season. The record is silent as to why no bids were advertised for in ■1908. Early in June, 1909, however, the board was directed to advertise for bids, and it did .so, with the result that the bid of Mr. Hill was accepted and the contract awarded to him. The proceedings of 1909. were not new proceedings, [58]*58but merely continuations of those of 1907, taking up the latter where they were left after the rejection of the lowest bid received that year. The power to act under proceedings had a year or two previously is unquestioned. To hold otherwise would be to subject municipalities to needless waste of time and money in instituting new proceedings every time an acceptable contract could not be secured the season the proceedings were had.

Plaintiff claims that an appeal lies from the final apportionment by the city council of the exact amount that is chargeable to a specific parcel as based upon an accepted bid. This is erroneous. The statute provides that the board of public works shall make a final report in which there shall be an assessment of benefits and damages accruing to each parcel of real estate by reason of the proposed improvement. Secs. 925 — 178, 925 — 179. Notice of action upon this final report by the council is provided for, and the council may then confirm or correct the report or refer it back to the board for further consideration. Sec. 925 — 181. The council in acting upon such report must make a final determination of the benefits or damages to be assessed to the real estate in case of a proposed improvement, and a notice thereof is required to be published. Sec. 925 — 183. The next section (925— 184) provides that “if the owner of any parcel of land mentioned in said notice feels himself aggrieved by reason of the determination made by the council he may, within twenty days after the date of such determination, appeal therefrom to the circuit court,” and the following section provides that “the appeal given by the last section from the report of the hoard of public works as confirmed by the council, shall be the only remedy,” etc. These two sections, as well as the statutes taken as a whole, clearly indicate that the appeal must be taken from the assessment of benefits and damages and not from an apportionment of a specific amount based upon a particular bid. The practice in many cities is not to [59]*59advertise for bids -until the final report of the hoard of public works is confirmed by the council, or in a particular case it may not be expedient or possible to do so. The assessment of benefits fixes the maximum amount that may be charged against a given parcel for the proposed improvement. It does not fix the exact amount. That cannot be done until a bid has been accepted and the amount chargeable to the city has been determined as provided in see. 925 — 182. Hardy v. Waukesha, 146 Wis. 277, 131 N. W. 352. Then an apportionment of the total cost chargeable to the property is made and assessed against each parcel in proportion to the benefits assessed. But the appeal lies not from such apportionment of the cost, but from the assessment of benefits. The final apportionment of the actual cost may not be made until long after the assessment of benefits has been made — in this case nearly two years. When the assessment of benefits is made the owner of each parcel is advised of the maximum amount that may be charged against such parcel, and if he thinks it too large he has his remedy by appeal. If the appeal were from the apportionment of the actual cost, then whenever a contractor whose bid had been accepted defaulted and a new contract had to be entered into and a different apportionment made, it would involve a new appeal. The statute contemplates but one appeal. Sec. 925 — 90 provides that when no proper bids shall be received, the council by a two-thirds vote of all its members may direct that the work be done under the supervision of such officer or officers as it shall designate. Here no apportionment could be made until a long time after the notice in sec. 925 — 183 is required to be published. It seems clear, therefore, that the statute contemplates that the appeal must be from the assessment of benefits and not from the apportionment of the actual cost, whether done by a contractor or by the city.

This brings us to the question of whether or not the council actually repealed the confirmation of the report of the [60]*60board of public works dated August 20, 1907. We shall assume for tbe purposes of tbe case that it had the power to do so, although that is not decided. As shown in the statement of facts, resolution No. 582 of August 20, 1907, contained a confirmation of the report of the board of public works and also an apportionment of the actual cost chargeable to the property based upon the acceptance of the Barber Asphalt Company contract which was accepted by resolution No. 574. The resolution of August 10, 1909, confirms the report of the board of public works which was already confirmed by the council on August 20, 1907, and then says: “Resolved further, that resolution No. 574 and 582, relating to- the apportionment of the cost of the proposed pavement on Seventh Avenue West, be and are hereby repealed.” This must be construed as a reconfirmation of the report of the board of public works and a repeal of only so much of resolution No. 582 as related to the apportionment of the cost based upon the Barber Asphalt Company contract. This is the result of what the council actually did, and that they so construed it is evidenced by the fact that no further notice of final determination was published. The council well understood that it was proceeding with the matter of paving Seventh Avenue West under the proceedings of 1907 and that the only thing that stood in its way was the resolution accepting the Barber Asphalt Company contract and the apportionment of cost based thereon. It was not necessary to reconfirm the report of the board of public works, but out of abundant caution, perhaps, the council did so. After the expiration of twenty days from the date of the final determination made by the council on August 20, 1907, due notice thereof having been published, the right to appeal was extinguished. Newton v. Superior, 146 Wis. 308, 130 N. W. 242, 131 N. W. 986.

It may be a serious question whether the time within which an appeal may be taken as prescribed by sec. 925 — 184 [61]*61is contingent upon the publication of tbe notice of final determination required to be published by sec. 925 — 183. Sec. 925 — 184 provides tbe appeal may be taken “within twenty days after tbe date of such determination,” not within twenty days after tbe date of the first publication of such notice of final determination, as is provided in sec. 959 — 30g. If it should be held that the appeal must he taken within twenty days after the date of the final determination, irrespective of the publication of the notice mentioned in sec. 925 — 183, then the plaintiff’s appeal is too late, whether it is held to be an appeal from the proceedings of 1907 or 1909. This question was not argued by counsel and is not determined herein.

The plaintiff not having taken an appeal within twenty day's from the 20th day of August, 1907, when the council made the final determination of benefits to be assessed against his property, he lost the right thereto. The present appeal was taken too late and the court acquired no jurisdiction of the matter.

By the Gourt. — Judgment reversed, and cause remanded with directions to dismiss the appeal from the city council.

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142 N.W. 513, 154 Wis. 54, 1913 Wisc. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-city-of-ashland-wis-1913.

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