12 N.W.2d 140 | Wis. | 1943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *217 Action in equity by Walter C. Boden and others against town of Lake to set aside a special tax imposed for sewer construction and recover assessments paid. From a judgment dismissing the action on the merits the plaintiffs appeal. The facts are stated in the opinion. The action was brought to set aside a special assessment for construction of a sanitary sewer constructed by the town of Lake through a, fifty, three-acre tract of farm land in the town on the ground that the town did not acquire jurisdiction to impose the tax and to recover the amount of the taxes imposed which were paid under protest. The tax imposed was to be paid in three annual instalments of $367 each, to be put upon the tax rolls of 1938, 1939, and 1940. The action was commenced March 6, 1940. The 1938 and 1939 instalments had been paid prior to that time. The 1940 instalment was paid February 27, 1941. The case was tried to the court in June, 1942.
Sec.
We will first consider the effect, if any, that sec.
The rule of the McMillan Case, supra, applies to the instant action. There was here a plea in abatement, although it was not denominated as such. The answer pleaded nonpayment of the third instalment and that was sufficient to constitute the allegation a plea in abatement. 3 Bryant, Wis. Pl. Pr. (2d ed.) sec. 305. The statute did not make the payment a condition precedent, for it expressly provided that payment might be made within twenty days from commencement of the action. The nonpayment did not destroy the plaintiffs' right of action but left him free to commence another case upon the same cause of action as in the McMillan Case, supra. *219
In the instant case the answer interposed the plea in abatement and a plea on the merits. This is a proper practice. 3 Bryant, Wis. Pl. Pr., supra. The trial judge decided the case upon both issues. By his written decision and his findings of fact and conclusions of law he decided both that the action should be dismissed because of nonpayment of the assessments within the twenty days, and also decided that it should be dismissed on the merits. If the court had decided the issue under the plea in abatement the other way it would have been proper to proceed to decide the case upon the merits. But having decided that issue as he did, judgment could not be granted on both grounds. The judgment must either have been entered upon the plea in abatement and been merely of dismissal with right to commence another action or been entered on the merits. The trial judge's conclusion of law merely was "That the defendants are entitled to judgment dismissing plaintiffs' complaint with costs." The judgment entered is plainly on the merits. The defendants by entering such judgment did not rely on their plea in abatement and waived the defense under that plea just as effectively as they would have waived it by not entering the plea. As to trials together of pleas in abatement and in bar see Pomeroy, Code Remedies (4th ed.), sec. 597.
As above stated, the principal ground of the claim that the special tax involved is invalid is that the town did not acquire jurisdiction to impose it. The sewer extended for nearly a mile wholly within the town of Lake adjacent to the east beside a railroad track and in a road called South Sixth street which is an extension of Sixth street in the city of Milwaukee. The tax was imposed on the adjacent lands east of the street only, but plaintiffs' whole tract of fifty-three acres was included while ten and a half acres lay west of the railroad track and received no possible benefit from the sewer. The purported basis of the tax is a resolution passed by the town board *220 January 4, 1937, reciting in a preamble, in substance, that the matter of installing a sanitary sewer in and along South Sixth street from the south limits of the city of Milwaukee to East Layton avenue had been considered, and that it had been decided that such installation was "for the best interests of the residents of the town of Lake and for the public interest, health and convenience of said residents." The enacting part of the resolution "Resolved that pursuant to . . . Stats. 1935, chapters 60, 61 and 62 . . . that the said sanitary sewer be laid . . . and that the engineer make and submit to the town board plans and specifications for said sewer."
The next step in the proceedings was a resolution reciting the submission to the town board by the engineer of plans and specifications for the said sewer, which "Resolved" that a notice be published that the plans and specifications were open for inspection at the orifice of the town clerk and "all persons owning or interested in real estate in said district are entitled to examine the same and file objections thereto," and that at a time and place specified the board would be in session to consider objections filed and hear all persons desiring to be heard. Such notice was duly published and at 7:40 p.m. at the close of the meeting noticed the board "approved" the plans and specifications.
The act of the board purporting to impose the special tax involved, and the only enactment besides those above noted that has any possible bearing on the validity of the tax is a resolution adopted December 14, 1938, after completion of the sewer, reciting that whereas the board had been requested to construct the sewer by a "petition of the property owners" who had "agreed to pay the cost of all materials, equipment rental and engineering and inspection charges therewith connected, under the WPA program;" and whereas "the costs of the construction of said sanitary sewers and laterals opposite the tract of land abutting" the same was as shown on attached exhibits; "Resolved that a tax be and is hereby levied to pay the cost of *221 construction of said sanitary sewers and laterals" on the abutting lands as shown by the exhibits and that the tax be extended in three instalments on the "1938, 1939 and 1940 tax rolls." The "exhibits" referred to merely referred to the plaintiffs' land as fifty-three acres and stated the assessment to be $1,103.41. The plaintiffs did not sign the "petition" referred to which was signed by fourteen persons. The sewer was built as a WPA project. The federal government contributed $43,150 toward it. The town paid the rest of the cost. The cost to the town was $3.45 per lineal foot and the assessment was $1.25 per lineal foot. No bids for construction of the sewer were taken or advertised nor was any contract for its construction entered into.
In the matter of special assessments it is fundamental that the assessments therefor cannot exceed the benefits resulting to the property taxed and that somewhere along the line the owner must have notice, actual or constructive, that his property is to be taxed and given opportunity to. be heard as to the amount of the assessment. Bekkedal v. Viroqua,
In the instant case no opportunity was given to the plaintiffs to be heard upon this question. The first resolution is the only one giving any sort of notice, and that was insufficient as notice of a special tax because nothing in it informed the plaintiffs that their property or any property would be specially assessed. The implication from the terms of the resolution plainly is that the cost of the sewer would be paid for by the whole town for the statement is that the sewer was to be constructed for the benefit of the whole town instead of for that of the abutting property.
Not only do the resolutions show on their face that no notice was ever given to plaintiffs that a special tax was to be imposed against their property or that they might be heard as to *222
the amount thereof, but the resolutions fail utterly to conform to the provisions for the proceedings necessary for cities to take in order to acquire jurisdiction to impose a special tax for sewer construction. The only provision in the chapter covering town government that relates to the construction of sanitary sewers is sec.
Sec.
Sub. (9) of sec.
It is contended on the authority of Hennessy v. DouglasCounty,
By the Court. — The judgment of the circuit court is reversed, with directions to enter judgment according to the prayer of the complaint.