92 Wis. 456 | Wis. | 1896
The objections to the validity of the assessment in question will be taken up in the order indicated in the foregoing statement of facts.
1. It is true that the complaint shows that this street in front of plaintiff’s property was, in the year 1816, graded and paved, pursuant to the direction of the city authorities,
2. We shall spend but little time on the second objection. It is true that no petition of property owners was ever presented for the laying of the pavement, but it is also true that the charter provides that paving may be done in the absence of a petition, upon the passage of a resolution by the common council declaring why it is necessary to proceed without a petition. Such a resolution was passed, declaring the street to be unsafe for public use, and that it was necessary to proceed without petition because the property owners had failed to make said street in a safe and suitable condition for the public use, and had failed to present to the council a petition therefor. We regard the reason stated as entirely sufficient.
3. We come now to the most serious question in the case. It appears by the affidavits that the specifications for the paving adopted by the city provide as follows:
“ GuaeaNtee. The contractor will be required, without additional compensation, to keep in good order and repair all the work done under these specifications and contracts for a period of five (5) years from and after the date of its completion, and to guarantee that during that period neither the municipal authorities or property owners shall be at any expense 'whatever for any repairs made necessary on account of any defective workmanship or material, or other reason, excepting where the same has been caused by cutting through the pavement for the laying or repairing of sewers, drains, gas, water, or electric service pipe, or other*462 work authorized by the board of public works, and that the pavement shall be in good condition and repair at the end of said period, and there will be retained until the expira-ration of such time, out of the money payable to the com tractor, such per cent, of the amount of this contract as the board of public works may deem proj>er, not exceeding, however, ten per cent, of the aggregate amount of the contract, as a guarantee that the contractor will conform to the requirements.”
The contract incorporated these specifications in its terms, and contained the further agreement as follows: “ And the said parties of the first and second parts [the contractor and sureties], for themselves, their heirs, executors, and administrators, further covenant and agree that, for the period of five years from the date of the completion of the said work, they will keep in good order and repair all of the said work done under this contract (excepting only such part or parts of said original work as may have been disturbed by cutting through the pavement for the laying or repairing of sewers, drains, gas, ■ 'water, or electric service pipe, or other work authorized by the board of public works), and that whenever directed by the said board, by a notice served upon them or their agents, they will at once proceed to make the repairs as thus directed, and, in case of failure or neglect on their part to do the work within five days from and after the date of the service of such notice upon them or their agents, then the said board of public works shall have the right to purchase such materials and to employ such person or persons as it may deem necessary to undertake and complete the said repairs, and charge the expense thereof to the above parties of the first a,nd second parts.”
The charter of the city of Milwaukee contains no provision for the levying of assessments against abutting property for repairs of a pavement or a street. In fact, it specifically provides that the expense of maintaining and keeping in re
But it is argued that this difficulty has been cured by the provisions of ch. 302, Laws of 1895. Milwaukee is one of the cities of the state which is operating under a special charter. By ch.. 238, Laws of 1895, all cities under special charters were divided into four classes, corresponding in population to the classes of cities acting under the general charter. The classes are: (1) All cities having a population of 150,000 or over; (2) all containing 40,000 to 150,000; (3) all containing 10,000 to 40,000; (4) all containing less than 10,000. Under this classification, Milwaukee is the only city in the state of the first class, and there are none of the second class. Ch. 302 aforesaid is an act providing for legalizing special assessments for street improvements, and providing for reassessment of such special taxes in case they are held void for certain specified reasons. The act applies, in terms, only to cities of the first and second classes; so that in fact, at present, it only applies to MilvjauJeee. It is also retrospective as well as prospective in its nature. It covers any action “ now pending or hereafter brought.” The third section was evidently intended to cure the difficulty in this case. It reads as follows:• “No special assessment
So far as this act is a curative statute for past irregularities,— that is, so far as it purports to legalize or help out •contracts or assessments made before its passage,— we think ■it manifestly unconstitutional, because it is special legislation. One of the rules laid down in Johnson v. Milwaukee, 88 Wis. 388, with regard to legislation by classification, is ¡that the classification must not be based on existing circum.■stances only. The class must not be so constituted as to preclude addition to the numbers included within it. It is very evident that so much of this law as attempts to cure past •irregularities is, and must be, always confined to the city of Milwaukee, and it can only apply to an existing state of :facts. No other city can. ever grow into its class for this purpose, any more than if the act had provided, in terms, that it should apply only to Milmamkee. We say nothing .as to those provisions of the law which are prospective in their operation, for they are not before us, and other questions will have to be considered in case their validity shall •be questioned in the future. On this general subject, see State ex rel. Harris v. Hermann, 75 Mo. 340, where a similar -question was under consideration, and the authorities are
4. We deem it proper also to consider the question raised under this head, although the foregoing observations will necessarily result in affirmance of the injunctional order. It appears by the papers used on the motion that Grand avenue, in front of plaintiff’s premises, was for many years-about 158 feet in width for a little more than two blocks. The street existed and was used at that width for about thirty years prior to the year 1883, when the common council of the city passed an ordinance declaring a strip forty-two feet in width and about Y00 feet long, in the middle of the avenue, a public park, and turned it over to the board of public works to be improved, ornamented, and maintained as other parks in the city. Thereupon this strip was converted into a small park, inclosed with stone curbing, and grassed and ornamented, and has been so maintained ever since. There was left a street on each side fifty-eight feet in width. The charter provides that the expense of paving to the middle of the street opposite the public grounds of the city shall be paid from the ward fund;. but • in the present case the plaintiff has been charged with the-expense of paving the entire street on her side, from her curb to the park curb. It is claimed by the plaintiff that she cannot, in any event, be charged with the cost of paving-more than one half the roadway on her side of the street. With this contention we agree. It is true, the forty-two foot strip was never dedicated or’conveyed to the city as a park; but the city has chosen to turn it into a park, to all intents and purposes, and it has been devoted to the use of' the general public as a park for more than ten years. Furthermore, the act of 1893, ch. 310, which alone makes any assessment for repaving possible, provides only “ for all that part of the roadway directly in front of or abutting such-property, and lying between the curb line and the center.of
By the Gourt.— Order affirmed.