60 Wis. 525 | Wis. | 1884
The circuit court gave judgment for the defendants, on the sole ground that no sufficient and reasonable time to perform the work ordered by the common
The court found that such notice was published by the board for six days in the proper official city papers, commencing May 26, 1871, requiring the owner of any lot or parcel of land fronting on the improvement to do the work mentioned in the notice by July 1st of the same year; and that the time limited for doing the work was unreasonably short. The court held that this failure to allow the owner sufficient time to do the work himself was fatal to the validity of the assessment, and rendered the tax certificate null and void. The question first to be determined is, Was this ruling correct ?
The giving of the notice required by ch. 401, Laws of 1869, is doubtless a condition precedent to the authority of the board to let the contract for doing the work. No notice being given, the board would be absolutely powerless to' make a valid contract to do the work, and thus the very groundwork of a tax to pay for the same would be wanting. It was so held in Johnston v. Oshkosh, 21 Wis., 184.
In this case, however, a notice was given pursuant to the requirements of the statute, except the time limited therein for the owner to do the work ordered was unreasonably short. Do the same consequences follow such a notice as would result from a failure to give any notice? The statute
The views here expressed do not conflict with the decision of this court in Foote v. Milwaukee, 18 Wis., 210, upon which the learned counsel for the defendant relies to uphold the judgment of the circuit court in the present case, in that case the tax certificate was impeached for fraud in the notice to the owner to do the work and in letting the contract, as well as in the subsequent proceedings of the street com
Counsel also questions the validity of the statute which provides for giving notice to owners of lots abutting the improvement to do the work ordered, by publication in official papers, because it does not require personal notice to be given to such owners, of at least to such of them as reside in the city. The case of State ex rel. Flint v. Fond du Lac., 42 Wis., 287, is relied upon to sustain that proposition. To that case may be added several others to the same effect. Among these are Hood v. Finch, 8 Wis., 381; Lumsden v. Milwaukee, id., 485; Seifert v. Brooks, 34 Wis., 443. In all these cases the question of- notice arose in proceedings to condemn lands to the public use. The grounds upon which these cases were determined are that such a proceeding is strictly adversary — the public, represented by some municipality, being one of the parties thereto, and the owner of the land proposed to be condemned to the public use being the other party,— and that the land-owner has a constitutional right to be heard (and therefore to due notice of the proposed proceedings), before there can be any valid condemnation of his property to the public use.
It follows that the ground upon which the circuit court rested its judgment cannot be sustained, and the judgment must be reversed unless the tax certificate is invalid for some' other cause disclosed in the record. Several other grounds of invalidity are alleged on behalf of defendants. These will now be considered in their order.
1. It is claimed that the petition for the improvement was insufficient to give the common council jurisdiction to order the same, and hence that all the proceedings are void for that reason. If the petition was insufficient under the-charter, the conclusion seems inevitable that the whole pro-’ ceedings, including the assessment, tax sale, and certificate, are null and void. The question is, therefore, "Was there a sufficient petition presented to the common council to authorize the council to order the improvement to be made?
The provisions of the city charter under which the improvement was ordered are found in a proviso to sec. 3, ch.
The improvement consisted mainly in raising the grade of Walnut street between Short and Third streets. It extends the length of three blocks on either side of Walnut street, each of which has a frontage on the latter street of 300 feet, exclusive of side streets and alleys. . Of this frontage of 1,800 feet, only 450 feet was owned by residents of the ward in which the improvement was made. The remaining 1,350 feet belonged to nonresident owners.
The petition for the improvement was signed by the resident owners of 300 of the 450 feet frontage — owned by residents of the ward. It was signed, therefore, by the residents of the ward wherein the improvement was to be made, “ owning a majority of the feet in front of all the lots fronting upon such improvement owned by residents of said ward,” and is a literal compliance with the requirements of the first branch or sentence of the statute above quoted. This is conceded. But the question' remains, ITow and to
It this is a correct view of the statute, the common council had no authority, and could obtain none, to order this improvement, because several of the blocks along the line of it wTere each owned entirely by nonresidents of the ward, and there were no resident owners on adjoining or opposite blocks. Hence there could be no petition for want of persons qualified to become petitioners.
It must necessarily happen, in a large and rapidly growing city like Milwaukee, that the public convenience requires that streets should be opened and improved through unsettled or sparsely settled portions of territory included within the city limits, and it may, doubtless often does, happen that a considerable portion of the lots or lands fronting the proposed improvement is owned by nonresidents of the ward in
It is difficult to believe that the legislature intended to place such insuperable obstacles in the way of needed street improvements, and it should not be held that this has been done unless the language of the statute forces that construction. The statute is very obscure. It is not easy to determine its precise meaning and scope, and we shall not attempt to do so. It is sufficient to say that its language does not require, and we cannot adopt, the restricted construction claimed by counsel. Neither do we hold that the construction contended for on behalf of the appellants is the true one, although counsel states that the city has always acted upon that construction. No doubt great weight should be given to that circumstance in construing the statute. All this will be duly considered when a case shall arise calling for a more specific construction thereof.
It is sufficient in this case to say that we think, and so hold, that the petition for the improvement was signed by the persons whose signatures thereto conferred upon the common council power to‘order the improvement, and hence that the tax certificate in question is not void for want of power in the council in that behalf.
Before leaving this branch of the case it may be observed that the majority of the feet front of the block in which the defendant’s lot is situated is not owned by nonresidents of the ward (assuming that defendant Seehawer owns the whole of lot 2), and is not within the terms of the statute authorizing resident owners of an adjoining or opposite block to petition on account of such nonresident owners.
2. The defendants Seehawer and wife conveyed to one Meyer a strip one foot wide, extending the whole length of lot 2 on the side abutting Walnut street, during the year
The findings and undisputed evidence are that such conveyance was made in anticipation of the improvement, and for the express purpose of relieving the balance of the lot from an assessment therefor; that the conveyance was accepted by Meyer at the solicitation of defendant John See-hawer; that no consideration was paid therefor, but, on the contrary, said John Seehawer paid Meyer for accepting it; that the possession of the strip remains unchanged, and Meyer never asserted any claim or exercised any control over it; and that, at the request of the city attorney, he executed a reconveyance of it to said Seehaiuer, and the deed was duly recorded, but was never delivered to Seehawer.
The circuit court found that the deed by Seehawer and wife to Meyer was made upon the understanding that the strip of land should be reconveyed to the grantors on request. There is no direct evidence of such an understanding, but, from all the facts in the case, it is not unreasonable to infer that the grantors expected to get the strip back again after the peril of an assessment upon the remainder of the lot had passed.
Were the assessment of benefits on lot 2 confined to the one-foot strip, such assessment would necessarily be for a merely nominal sum, for the reason that the strip, dissevered from the lot, would be practically useless, and of little or no value, and could not possibly be materially benefited by the improvement. The result would be that the difference between such nominal assessment and the amount of benefits which would otherwise be assessed against the whole lot, would be payable out of the ward fund, which is raised by a tax on all the taxable property in the ward. If each lot-owner along the line of the improvement had pursued the
The conveyance of the strip to ‘Meyer was an open and avowed attempt on the part of the grantors to perpetrate a gross fraud on the law, and on the tax-payers of the ward, and it would be a x-eproach and a disgrace to our jurisprudence if the courts, and especially a court of equity, should allow the attempted fraud to'succeed.
We have no difficulty in holding that the whole of lot 2 was assessable for benefits on account of the improvement, notwithstanding the deed of the foot strip to Meyer.
3. As to the claim that the tax certificate is void because the work ■ was not done within the time limited therefor in the contracts, or within the extended time granted by the common council, but little need be said. The fact remains that the work was done under the sanction of the board of public works. But, aside from that, the delay in doing the
Our conclusion upon the whole case is that none of the grounds upon which the defendants seek to sustain the judgment -of the circuit court are tenable, and the judgment must therefore be reversed.
The plaintiff Jante does not join in the appeal, and the judgment of the circuit court, as to him, is not disturbed. As to the appellants, the judgment is reversed, and the cause will be remanded, with directions to that court to give judgment for the appellants, as prayed in the complaint, as their interest in the tax certificate may be made to appear.
By the Court.— Ordered accordingly.