61 Wis. 545 | Wis. | 1884
After reading the testimony contained in the bill of exceptions we are inclined to think the court erred in
The only difference between the case just cited and the one at bar is that in the Teegardm Case the common council, in the first instance, determined upon what property the cost of the improvement should be assessed, and in the case at bar that fact was to be determined in the first place by three commissioners to be appointed for that purpose; but their action is to be reported to the council for their approval, and sec. 11 of title Y of ch. 313, Laws of 1876, provides that all parties interested may be heard as well before the common council as before the commissioners, and they are, by sec. 12, allowed twenty days to appeal after the confirmation of the acts of the commissioners by the common council. We see nothing in this case, or in the arguments of counsel, which should induce us to overrule the case of Teegarden v. Racine. We think it is sustained by reason and authority, and that to hold differently would lead to endless confusion, and render it impossible to make a special assessment under the provisions of the charter which could be enforced with any degree of certainty.
Dillon, in his work on Municipal Corporations,sec.596, says: “The many cases which have been decided fully establish the general proposition that a charter or statute authorizing the municipal authorities to open or establish streets, or to make local improvements of the character above mentioned, and to assess the expense upon the property, which, in the opinion of the designated tribunal or officers, shall be benefited by the improvement, in proportion to the amount of such benefit, or upon the abutters in proportion to benefits or frontage or superficial contents, is, in the absence of some special constitutional restriction, a valid exercise of the power of taxation.” “Whether the expense of making such improvements shall be paid out of the gen
Judge Cooley, in his work on Taxation, page 449, saj^s: “ When benefits are assessed after this method, the district within which the tax shall be laid may be determined in either of two modes: (1) The legislative authority either of the state, or, when properly authorized, of the municipality, may determine over what territory the benefits are so far diffused as to render it proper to make all lands contribute to the cost; or (2) the assessors or commissioners, who, under the law, are to make the assessment, ma)'' have the whole matter submitted to their judgment, to assess such lands as in their opinion -are specially benefited, and ought, therefore, to contribute to the cost of the work. . . .” On page 451 he adds: “ Where the legislature prescribes no limits to the taxing district, but authorizes an assessment on such property as shall appear to be benefited, the report of the assessors or commissioners can alone determine what the district shall be. The subject is referred to them, as a matter depending on judgment after actual inspection; but, as they only pass upon the question of fact, the district is to be considered as prescribed by the legislature, when the principle is settled which is to determine it.”
In the case at bar, as in the Teegarden Case, the commissioners fix the taxing district by determining what lots shall
The circuit court erred in refusing the instructions requested by the counsel for the city, as well as in his direction to the jury to find a verdict which practically takes the property of the respondent out of the assessment district as fixed by the commissioners and affirmed by the common council of the city.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.