Cawker v. Central Bitulithic Paving Co.

133 Wis. 29 | Wis. | 1907

. WiNslow, T.

1. The discussion of the general principles involved in actions of this nature which is contained in the opinion in the companion case brought by these same plaintiffs involving the contract for paving Wisconsin street renders-unnecessary any further remarks on that subject here, and demonstrates that the plaintiffs were entitled to an order-pendente Hie restraining the paying out of city funds in discharge of the void contract. The plaintiffs, however, as general taxpayers, had no interest in the question of the validity of the special assessments, and were not entitled to any order which would prevent the company from collecting assessments which might be voluntarily paid or assessments which the property owners had by laches or consent barred themselves from contesting. They were fully protected by an order restraining the city officers from paying out any city or ward funds upon the contract. The order in question, however,, not only gives them this relief,' but goes further and prevents the board of public works from accepting the work. This was plainly going too far. Acceptance of the work was-not in any way essential to the relief demanded by the plaintiffs, but was necessarily a prerequisite -to the issuance to the-company of special assessment certificates. So far as the-plaintiffs were concerned, the company was entitled to have-the work accepted if it had fully performed its contract, and there is no claim that it had not. That part of the order restraining the acceptance of the work was therefore unwarranted ; but the plaintiffs now claim that no advantage can betaken of this, because no motion was made to modify the order, but only a motion to vacate. This smacks somewhat of legal hair-splitting. To hold that upon a motion to vacate the court must deny the motion in toto, however unjust some parts of the injunctional order may be, so long as any part is right, seems very much like sacrificing substance to mere legal form and denying justice for the purpose of ingrafting a sublimated refinement upon Code practice. We-were not referred to any authorities in support of this contention, nor have we found any cases where it has even been urged — a fact which in itself seems quite significant. In the following cases injunctional orders were, in fact, modified upon motions to vacate or dissolve: Downing v. Beeves, 24 Kan. 167; Edwards v. Perryman, 18 Ga. 374; Plunkett v. Dillon, 3 Del. Ch. 496. We think it clear that the court should have modified the injunctional order by striking out that portion thereof which restrained the board of public works from accepting the work.

2. We think the demurrer to the cross-complaint was properly overruled. A cross-complaint may properly be interposed by a defendant when he is entitled to affirmative relief against a codefendant or against a codefendant and a plaintiff or other party, and such relief involves or affects the contract, transaction, or property which is the subject matter of the action. Sec. 2656^ Stats. (1898) ; Kollock v. Scribner, 98 Wis. 104, 73 N. W. 776. If, under the law providing for reassessment of invalid special assessments, the paving company was entitled to have a reassessment in the event that the assessments already made are held void, it seems clear that such relief does involve in some measure the subject matter of the present action, because by such reassessment the total amount charged against adjoining real estate may be either greater or less than the total amount charged on the first assessment, and thus the balance attempted to be made chargeable against city or ward funds which this action is brought to conserve and protect may by the reassessment be substantially increased or diminished. The size of the fund to be protected is to be determined by the reassessment, and in this aspect of the case relief by way of reassessment seems to be germane to the subject of the action. So the question is whether the defendant has a right under the law to a reassessment. Sec. 1210d, Stats. (Supp. 1906; Laws of 1905, ch. 501), is very sweeping in its terms, and provides that the city authorities shall proceed to make a new assessment when the original assessment is invalid because the work has been done “without authority of law.” That seems to cover this ease. If these assessments are void it is because there was no authority in the law to cause the work to be done under a contract such as is alleged to have been made.

The argument is made, however, that the reassessment does not and cannot operate to validate the original void contract, and hence that the reassessment will have no legal basis to stand upon any more than the original assessment has. The answer to this objection is that the contract does not require validation (if, indeed, such a thing were possible) in order that a reassessment may be valid. This was quite thoroughly settled in the case of Mills v. Charlton, 29 Wis. 400, where a very terse law authorizing the reassessment of special assessments (which were invalid because the contract for the work was void as here) was maintained and enforced notwithstanding the fact that it did not purport or attempt to validate the contract. The principle is that the legislature could in the first instance provide for the levying of special assessments for improvements made without any previous contract, and taxation which the legislature may originally authorize it may retrospectively validate by providing for a reassessment. May v. Holdridge, 23 Wis. 93.

If a reassessment be had in this case, attention is called to that part of sec. 121 Od, supra, which provides that, if the original contract under which the work was done contained cmy provision not authorized by law and which tended to increase the contract price, the city authorities in making the new assessment shall determine the proportion of the contract price justly chargeable against the property for the work and assess the same against such property.

Upon the appeal of the paving company, the order denying the motion to vacate the injunctional order must be modified so as to provide that so much of the injunctional order as restrains tbe board of public works from accepting tbe work is vacated, and, as so modified, tbe order must be affirmed. Upon tbe appeal of tbe plaintiffs tbe order overruling tbeir demurrer to tbe cross-complaint must be affirmed. Tbe paving company will be allowed one bill of costs in this court.

By the Gourt. — It is so ordered.