31 Wis. 648 | Wis. | 1872
Lead Opinion
Tbe following opinion was filed at tbe June term, 1871
These are cross appeals from different parts of tbe same order. Tbe action is brought to restrain tbe collection of certain special assessments made against tbe plaintiff’s lots on West Milwaukee Street in tbe city of Janesville, for regrading that street and repaving it with tbe Nicholson pavement. Tbe circuit court granted tbe injunction to restrain tbe collection of tbe assessment for repaving tbe street, but dissolved it so far as tbe assessment for regrading tbe street and preparing tbe road bed was concerned. So each party appeals from that portion of tbe order adverse to him. Both branches of tbe order depend essentially upon tbe same questions of law and fact, and tbe appeals will therefore be considered together. And tbe first ques
It is first insisted on the part of the plaintiff, that under the charter the expense of repaving a street cannot be charged upon the contiguous lots. It is claimed that this is reasonably clear from the language of the different provisions of the charter. By section 18, chapter 6 of the charter (P. & L. Laws of 1866, ch. 474), it is enacted that the common council shall have power to cause any street or any part thereof to be graded, worked, graveled, macadamized, paved or repaved, planked or replanked and repaired, and to cause any sidewalks, crosswalks, drains, sewers or culverts to be made therein, as it shall deem necessary, and the same shall be repaired or relaid as may be ordered by the common council; providing that no street or any part thereof shall be graded, macadamized, paved or repaved, planked or replanlced, without a recommendation in writing, signed by a majority of the resident owners of property which is bounded by the street thus improved. By the next section it is provided, that the common council, prior to ordering any street to be graded, paved or repaved, shall cause accurate specifications of the proposed work to be prepared, and shall advertise, in a newspaper published in the city, for sealed proposals for the performance of the work. When such proposals have been received, the common council is to determine which is the most favorable, and may, by a vote of a majority of its members, accept such proposal and authorize the construction of the work, directing the expense thereof to be assessed in the manner specified therein.
In case the work was grading or paving a street, the expense of the whole work was to be ascertained, and each lot on both sides of the street was to be assessed with its proportion of the expense, which was to be ascertained by multiplying its number of feet front by the average expense per foot, excluding cross-streets from the computation. If the work was the construction of any crosswalk, culvert or sewer, or the keeping in
It is claimed that these provisions show with reasonable certainty that the work of repaving a street was to be done at the expense of the ward fund, and not at the expense of the contiguous lots. Beyond all question, it is said, the expense of keeping streets in repair is chargeable to this fund, and repaving a street is nothing more than keeping it in repair.
It is undeniably true that a covenant to repair has generally been construed as importing the duty to rebuild in case of total loss or destruction of the property. The case of Beach v. Crain, 2 N. Y., 86, is an illustration of this rule. But we do not think the word “repair” is used in this enlarged sense in the city charter. It refers rather, we think, to the ordinary repairs which are necessary to keep the street in a good condition when there has been a partial waste or destruction of the existing material. But in this case the old macadamized pavement, consisting of stone, was removed, and one consisting of wood mainly, or at all events of an entirely different character, was substituted in its place. It is not usual to characterize such a new structure as being merely a repair of an existing improvement. But whatever doubt might arise upon the original provisions of the charter in regard to the right to charge the lots abutting upon the street with 'the expense of repaving the same, is removed by the amendatory act of 1869. That act authorizes the common council to determine the kind of pavement which shall be used for paving or repaving a street, and, in case it is determined to use any pavement which is patented, it has the power to procure the right to use such pavement, and the sum paid therefor is to be added to the expenses of such paving or repaving, and be apportioned there
Another objection taken to the validity of the assessment is, that the expense of twelve crosswalks is included therein, which, by subd. 2, sec. 19, is to be paid out of the ward fund. To this objection it is answered that there are no crosswalks, within the meaning of that term; that the Nicholson pavement is a continuous one, being laid to the north and south lines of West Milwaukee Street, with slight elevations in the pavement at the street intersections, which serve for crosswalks, but which are really a part of the pavement, and should be páid for as such. We are inclined to adopt the latter view of this matter. What are termed crosswalks at the street intersections are sub- . stantially and really parts of the main pavement, and the fact that there is an elevation of the wooden block paving of three inches in the center of the walk, does not change their character. They are constituent parts of the main work, and do not anywhere extend beyond the proper north and south limits of W est Milwaukee Street.
A still further objection is, that the grade of the street was changed, and the expense of this grading is included in the assessment on the lots contiguous to the improvement, while the charter requires that such grading be charged upon the lots on both sides of the street “ throughout its whole extent.” But this objection is fully answered by the decision in Dean v. Charlton, 23 Wis., 590-609, on a precisely similar question, where Mr. Justice Paine says: “ The grading, although let by a sep
Again, it is said that a large extent of curbstones was not taken up, but tbe expense of setting new curbstones for tbe entire extent of the improvement is included in the assessment, and tbe owners«n front of whose lots tbe curbstones were allowed to remain are credited on their assessment with tbe cost of setting new curbstones. But, as we understand it, this is really accomplishing the object intended in section 19 of tbe charter. That is, where the owner of a lot fronting on the street within the limits of the proposed improvement has already made an improvement similar in kind and character to the one proposed, then his lot is to be excluded from the computation and assessment of the expense. . In other words, where a lot owner has once made and paid for the improvement ordered, he shall not pay for it a second time while the original work remains in a good condition. Under the course adopted in this case, each lot which had a proper curbing contributes nothing towards the expense of setting new curbstones. This, as it seems to us, was truly carrying into effect the real intent of the provisions of the charter.
These remarks sufficiently dispose of the material objections to the validity of the special assessment which arise under the provisions of the charter, except the one that there was no recommendation for the repavement, in writing, signed by a majority of the resident owners of property bounded by the street, presented to the common council before the work was ordered. Such a recommendation was in fact presented to the common council, dated May 13th, 1869, which was signed by a majority of the resident owners of lots bounded on West
The condition that a street should not be paved or repaved without a recommendation of a majority of the owners of prop: erty which was to pay for the improvement, was obviously intended as a check upon the action of the common council, and the spirit of the provision would not be fulfilled unless the signers should make the recommendation freely and upon a proper knowledge of the facts. Certainly, if they were induced to. sign the recommendation through the falsehood and fraud of members of the common council, there is no reason for saying that they are bound by the recommendation. I should, there-, fore, be inclined to hold the objection that there was no such ^recommendation as the charter contemplated, an insuperable one, were it not for the curative statute of 1871 (eh. 243, R. & L. Laws of 1871). This law, in effect, provides that this rec: ommendation shall be held conclusive evidence of the facts therein stated; and that all the proceedings of the common council, after the reception of the recommendation, relating to the subject matter thereof, which would have been authorized had the recommendation been sufficient, are legalized and declared valid. This statute was manifestly intended to
Tbe other objections taken to tbe validity of the assessment bave not been overlooked; but we' do not deem them of sufficient importance to require special notice. We think that part of tbe order appealed from by tbe city, wbicb restrains tbe collection of tbe assessment made for paving tbe street with new pavement, must be reversed; and that tbe other part of the order, appealed from by tbe plaintiff, must be affirmed.
By the Court.— So ordered.
Rehearing
A rehearing was granted, and tbe following opinions were filed at tbe June term, 1872.
These are separate appeals from different parts of tbe same order. I bave come to tbe conclusion fiat tbe part of tbe order appealed from by tbe city should be affirmed, and that tbe part from which tbe plaintiff appeals should be reversed.
I take it that the curative statute upon which tbe city relies (cb. 243, P. &. L. Laws of 1871), is susceptible of no construction wbicb would make it subversive of tbe fundamental principles of assessment, as established by tbe charter. Eor example, I understand, if it was not tbe intention of tbe charter that lot owners should under any circumstances be charged with tbe expense of crosswalks or of grading and paving street in
I am quite satisfied tbat tbe expense of tbe crosswalks, although made of tbe same materials as tbe pavement, and with very little if any difference in tbe mode of construction, should come out of tbe assessment. Upon this point' counsel do not disagree as to tbe proper construction of tbe charter, tbat it requires crosswalks to be paid for out of tbe ward fund, or tbe funds of tbe city at large, and not by assessment upon tbe lots abutting on tbe street. Tbe only controversy with respect to tbe crosswalks has been, whether, by tbe similarity of materials and construction, they were not to be considered as merged in tbe pavement, or as so having become a part of it that their separate existence and identity as crosswalks was lost, and they can be no longer so recognized. It is clear to my mind that this supposition or theory of merger or extinguishment cannot be maintained on any such ground, consistently with tbe provisions of tbe charter or tbe rules of assessment established by it. The charter recognizes the designated spaces at the street crossings as crosswalks, and so must we, and so must tbe common council or officers whose duty it is to make the assessments. The peculiarity of construction, or nature of the materials made use of, has nothing to do with the question, provided tbe structure or thing completed serves as a crosswalk and was prepared, intended and accepted to be used as such by the public authorities. This seems to me to be the only rational and proper test; and I think tbe expense of the crosswalks was improperly included in the assessments made against the lots, and so was not legalized by the act.
The question arising upon the construction of this statute is, whether the expression, '• excluding cross streets from the computation,” is to be understood as signifying that cross streets are to be excluded from the frontage or feet front on the street upon which the average expense of doing the whole work is to be assessed, so as to make such expense fall entirely upon the lots, or whether it is to be understood in the sense that cross streets are to be excluded from the computation of expenses in ascertaining what the average expense upon each foot front of the lots ma3r be. The question seems to be, whether the exclusion of the cross streets applies to the computation of expenses which are to be assessed, or whether it applies to the computation of feet front of lots upon which all expenses are to be charged. The last is the construction put upon it by counsel for the city. They interpret it as if the words were, “ excluding cross streets from the computation of feet front” I do not know as I state their position clearly and intelligibly. I am sure I do not as clearly and intelligibly as they did at the bar, and I doubt whether I am capable of doing so. I have looked upon the opposite construction as so clear, and the same has become so firmly impressed on my mind, that I confess to the utmost difficulty in seeing the question in any other light. But my brother Cole, who differs from me and agrees with counsel for the city, will undoubtedly be able to do their position greater justice when he comes to write his opinion. To my mind it is very plain that the cross streets are to be excluded from the computation of the average expense which is to be assessed upon each foot front of the lots. The following transposition will, perhaps, make my reading more clear ;
But suppose the language to be ambiguous, which I do not see, but which I must yet concede because others differ so widely from me; then the language of the proviso must, as it seems to me, settle the controversy. The intention of the writer, and so of the legislature, is made very clear when we come to the provision there made for cases where the owners of lots or parcels of land have made the same or a similar kind of improvement on the street in front of their lots or parcels of land. Such lots or parcels of land are to be excluded entirely from the assessment, which shows that only the expense of the work or improvement in front of the lots themselves was to be charged to or assessed upon the lots. If this wore not so, then it would follow that the lots or parcels of land mentioned in the proviso would escape entirely the burden of paving the street intersections, and that burden would be cast as an additional or increased assessment upon the other lots and parcels of land on the street; which the legislature never could have intended; This view seems to me decisive of the question. It explains the intention of the legislature, if, before we come to the proviso, or without it, the language of the statute can be said to be ambiguous.
■» And it occurs to me furthermore to observe, with respect to the principal question, that there seems to be no propriety in considering cross streets as “ lots and parcels of land on both sides of such street,’’ .for the purpose of applying the exception or exclusion of cross streets, so as to take such streets out of
The other questions in the case, as to which there is no disagreement between Mr. Justice Cole and myself, will be considered by him in his opinion.
I think it follows that the lot owners must pay the expense of the pavement in front of the lots on the street, averaged according to the provisions of the charter, and possibly (though of this I express no opinion) with interest at the rate of seven per cent, from the publication of the curative act, March 9, 1871. They are not, in my judgment, required to pay anything for paving the intersections nor the crosswalks, which are probably included within the street intersections.
I think the order of this court on such appeal should be as stated at the commencement of this opinion.
In the former opinion it was held that what are termed crosswalks at the street intersections constituted, in fact, a portion of the main pavement, and were to be paid for at the expense of the adjoining lots abutting on the street improved, and not out of the ward fund. The counsel for the city freely concede that if the elevations which are made in the Nicholson pavement at the sti’eet intersections are to be deemed and treated as crosswalks within the meaning of the charter, then it was wrong to include them in the assessment. For the charter is very clear and specific, that the construction of crosswalks is to be paid for out of what is known as the ward fund. Subd. 2, sec. 19, ch. 6, and sec. 2, ch. 5, of the charter. But
Second. I am unable to agree with the chief justice in regard to the expense of grading and paving the street intersections. The cost of this work has been assessed upon the lots and parcels of land bounded on the improvement. Is this authorized by the provisions of the charter ? It seems to me that it is. The whole question turns upon the construction which is given to the last clause of subdivision 1, sec. 19, ch. 6 of the charter. This is quoted at length by the chief justice, and need
1. The aggregate front length of all lots and parcels of land on both sides of the street, limited by the improvement, is to be ascertained by some competent person.
2. The front length of each lot and parcel of land bounded on such improvement, with a correct description thereof and the name of the owner, if known.
3. The common council then determines the expense of the whole work, including the expense of surveying, etc.
4. The average expense upon each foot front of lots and parcels of land on both sides of the street bounded by the improvement, excluding cross streets from the computation, is to be ascertained.
6. Each lot or parcel of land is then assessed with its proportion of the expense, to be ascertained by multiplying its number of feet front by the average expense per foot.
In other words, the object of this clause is to carry out the general policy and economy of the charter, which are to throw the entire expense of the improvement upon the lots abutting on the street in proportion to the number of feet front. Consequently the average expense upon each foot front of the lots on both sides of the streets is ascertained (the cross streets being excluded from the computation), and the amount with which each lot is chargeable is found by multiplying its number of feet front with the average expense per foot front. In arriving at the expense of the whole work to be done, the common council would necessarily have to include the expense of grading and paving the street intersections. Eor that would obviously be one item of the gross amount or cost of the work. And this amount divided by the aggregate number of feet front of all lots on both sides of the street within the limits of the improvement, would give the average expense of each foot. And this sum resulting from the division, when multiplied by
It is suggested that the language of the proviso clearly shows that it was not the intention to throw upon the lots abutting upon the street the expense of paving the street intersections. But I draw from it no such inference. The proviso in effect em acts, that when a lot owner within the limits of the proposed improvement has already made an improvement in front of his lot similar in kind and character to the one proposed, then his-lot shall be excluded in the computation and assessment for the expense of the work. The effect of this, it is said, under my construction of the previous clause, is to throw irpon the other lots the cost of paving the street intersections. This would undoubtedly be the result in that case. But it is obvious from the nature of the case that no expensive improvement — such as paving, repaving, planking or macadamizing a street — would ever be likely to be done by lot owners in detail. Such work must be done on some general plan. If the work proposed was such as curbing, and some lot owners had already made the-
Third. These remarks, together with what is said in the previous opinion, dispose of all the questions properly before us on these appeals. The reheating was granted because we were in doubt in regard to the decision which charged the lots abutting on the streets with the expense of laying the pavement at the street intersections, and also with the expense of the cross walks. It will be seen that the chief justice and I differ in our construction of the charter relating to the expense of laying the pavement at street intersections, but agree upon the other point. We also agree upon the other questions discussed upon the re-argument, upon which an expression of our views was solicited by counsel on both sides for the guidance of the court below in proceeding with the cause. Under the circumstances which have attended this litigation, I have thought we ought to comply with this request, notwithstanding my gen
There has been no re-assessment of these taxes since the curative statute of 1871 took effect. It is possible that no reassessment will be found necessary, and that the circuit court will be able, upon evidence submitted, to ascertain the amount of taxes which the plaintiff is justly liable to pay under the provisions of. the charter as a condition of enjoining the collection of the excess. If so, we agree that the plaintiff should only be required to pay that amount, with ■ possibly interest thereon at the rate of seven per cent., from March 9, 1871. The charter provides that if any tax levied shall be set aside by an order of court, the common council shall forthwith re-levy and re-assess the same, with interest thereon at the rate of seven per cent., from the date of the warrant for the collection of the tax so set aside. Sec. 22, ch. 7. The irregularity in the proceedings of the common council was validated by the passage and publication of ch. 243, March 9, 1871; and we do not think the plaintiff should be required to pay any interest prior to that time. This is surely giving to the healing statute all the force and effect which it was intended to have, and all which in equity and justice should be applied to it.
Another question-was, yhether this curative act legalizes the warrant and assessment roll in the hands of the treasurer, and makes good the notice given by him under sec. 5, ch. 7, requesting the tax payers to forthwith make payment of their taxes. We do not think it does. The act does not upon its face profess to do these things and there is no reason for giving it a strained construction. When the notice was given by the treasurer in 1869, of course the tax was invalid. The plaintiff was not in default for omitting to pay what was not legally due. Another tax warrant must be issued and another notice published, before interest at the rate of 12 per cent, as provide! by section 9 of ch. 7, will begin to run. It was not seriously
■ I agree with tbe chief justice in tbe order to be made in tbis court
By the Court. — That part of tbe order of tbe court below from which tbe city appeals, is affirmed; and that part of said order from which tbe plaintiff appeals, is reversed.