Borgman v. City of Antigo

| Wis. | Jan 12, 1904

Siebecker, J.

The city contends it adopted subd. 40 of sec. 52, subch. VII (subd. 40, sec. 925 — 52, Stats. 1898), of what is known as the general city charter law, which provides that the city shall have power “to provide for sprinkling its streets at the expense of the city or of the lots or parts, of lots fronting thereon.” By sec. 175 of subch. XVIII (sec. 925 — 175, Stats. 1898), it is enacted that the city “may cause [such] streets and alleys to be swept, sprinkled and •cleaned,” and “the expense of such work or improvement may he paid in whole or in part by the city, or by the property to be benefited thereby, as the council may direct, but in no case shall the amount assessed to any parcel of real estate ■exceed the benefit accruing thereto by such improvement except in case of sidewalk.”

The city had no power under its special charter, before the •attempted amendment, to sprinkle streets at the cost of the lots fronting thereon. It could not, therefore, exercise this power unless authorized by the adoption of subd. 40, sec. 52, subch. VII. That the attempted adoption of this subdivision 'by the city of Aniigo is invalid appears clearly under the law as announced in Adams v. Beloit, 105 Wis. 363" court="Wis." date_filed="1900-02-02" href="https://app.midpage.ai/document/adams-v-city-of-beloit-8186516?utm_source=webapp" opinion_id="8186516">105 Wis. 363, 81 N. W. 869, and State ex rel. Boycott v. Mayor, 107 Wis. 654" court="Wis." date_filed="1900-10-30" href="https://app.midpage.ai/document/state-ex-rel-boycott-v-mayor-of-la-crosse-8186741?utm_source=webapp" opinion_id="8186741">107 Wis. 654, 84 N. W. 242. It was therein decided that a city under ••special charter may adopt a part of the general charter law if it is an integral part of the law, complete in itself. But the part adopted must, however, “be a complete law in all its terms and provisions, when it leaves the legislative branch -of the government, so that nothing is left over,” save that the common council may determine whether it shall, be •adopted as a part of the law of the city. (State ex rel. Boycott v. Mayor, supra.) When the city chose to adopt only subd. 40, sec. 52, subch. VII, granting xoower to sprinkle streets at the cost of the city or of the lots or parts of lots fronting thereon, it wholly failed to adopt the legislative •scheme for city improvements as set forth in subch. XVIII of this law, providing that cities may cause streets to be •sprinkled, and charge the costs upon property to the extent it is benefited thereby as a special assessment.

Under the charter as it stood after the attempted amendment it contained no provisions embodying the conditions ■and the procedure prescribed by secs. 175-1970, inclusive, as necessary conditions to authorize it to make any of the improvements therein. specified, and for the payment of the expense thereof either by the city or by the property to be benefited thereby. The result is that by-the attempted amendment of the charter the city assumed to acquire a power under which it seeks by special assessments to impose the expense of carrying it into effect upon property in a manner wholly at variance with the requirements fixed by legislative action for the exercise of this municipal function. The steps to betaken to accomplish this purpose on the part of the city council, as prescribed in the sections of the general charter law, are deemed important and essential to protect these individual rights and the interests of the property owner. In State ex rel. Boycott v. Mayor, supra, the court, in speaking-of these personal rights, said: -

“This seems to be the very thing that the legislature intended to guard against — the guards which the property-owner was intended to have — and it is the very safeguard, which the council have denied him.”

These omissions are fatal, and render-the attempted adopting of subd. 40, sec. 52, subch. VII, as part of the city charter, invalid.

This result disposes of this branch of the case without inquiry into the question whether the expense of sprinkling-streets can be charged by special assessment as a benefit on lots fronting on such - streets, and we ’ therefore express' no-opinion on the subject.

It is urged that the assessment, if not valid under the above conditions, was properly made within the powers conferred upon the city, as one incorporated by special act,, under eh. 40 &, Stats. 1898, relying particularly upon the-provisions of sec. 926 — 10. This section prescribes that the-expense of street sprinkling may be assessed to the owner-of the property fronting on such street in proportion to the-frontage of each owner, excepting street crossings. The assessment under these provisions was, however, clearly illegal-Any action under this section requires, as a condition of the validity of the proceeding, that the petition to sprinkle a street he signed by the owners of the majority of the frontage upon the street or part of street which is to be sprinkled. The court found that the petition upon which the council assumed to act Avas not signed by the owners of a majority of the frontage of the part of the street sprinkled, and, further, that the city wholly omitted to enter into a contract with the persons who did the sprinkling. Upon examination of the evidence we find the court’s conclusions as to these facts are supported by the proof. These omissions make the proceeding ■fundamentally defective and void. State ex rel. Moore v. Ashland, 88 Wis, 599, 60 R. W. 1001; Dieckmann v. Sheboygan Co. 89 Wis. 570" court="Wis." date_filed="1895-03-05" href="https://app.midpage.ai/document/dieckmann-v-sheboygan-county-8184780?utm_source=webapp" opinion_id="8184780">89 Wis. 570, 62 R. W. 410.

It is unnecessary to consider other defects in the council proceedings, adverted to upon the argument.

By the Court. — Judgment affirmed.