Hall v. City of Chippewa Falls

47 Wis. 267 | Wis. | 1879

Cole, J.

According to the allegations of the complaint, it is very certain that the common council never took the steps prescribed by the city charter, which were essential to make the expense of grading, claying and graveling West street chargeable on the adjoining lots. The charter provides that every resolution for doing such work at the expense of the lots, on being introduced, shall be referred to some appropriate committee, and shall not be adopted sooner than fourteen days from the introduction thereof, nor until ten days after the proceedings of the council relative thereto, at the meeting at which such resolution was introduced, shall have been published in the official paper. Section 1, sub-chap. XI of chap. 169, Laws of 1873. Again, the charter requires that whenever the common council determines to make an improvement of that character, they shall cause to be made an estimate of the whole expense thereof, and the amount to be assessed and charged to each lot, and the number of cubic yards to be filled or excavated in front of each lot; and such estimate must be filed in the office of the city clerk for the inspection of the parties interested, before the work is ordered to be done. Section 9, ch. XI. It was necessary that the common council should comply with these requirements of the charter in order to charge the lots with the expense of the work. This court has often decided that the taking of each step as prescribed was essential, and amounted to a condition precedent to making the lot liable. See Massing v. Ames, Treasurer, etc., 37 Wis., 645, and cases cited in the opinion; also, Pound v. Supervisors of Chippewa County, 43 Wis., 63.

The complaint avers and shows that these and other provisions of the charter were not complied with on the part of the common council; and it follows, of course, that the adjoining lots were not chargeable with the work. And because of this failure of the common council to make the lots chargeable, it is insisted that the city is under obligation to pay for it. The difficulty, however, with this position is, that there is a further clause of the charter which declares that whenever any work has been done under a contract of the character of that mentioned in the complaint, the contractor shall be entitled to certain certificates, etc., but that “in no event, where work is ordered to be done at the expense of any lot or parcel of land, shall the city be held responsible for or on account thereof, or for any proceedings for the collection of the pay thereof.” Section 12, ch. XI. It is impossible to hold, in the face of this pi’ovision, that the city is liable to pay for the improvement on the facts stated. See Eilert v. City of Oshkosh, 14 Wis., 587; Whalen v. City of La Crosse, 16 Wis., 270; Finney v. City of Oshkosh, 18 Wis., 210; Fletcher v. City of Oshkosh, id., 229; Second Case, id., 233. The case of Fletcher v. City of Oshkosh is a direct authority on the point we are considering. The charter of the city of Oshkosh contains precisely the same provision on this subject as the one in the charter of the defendant city. The holder of a street commissioner’s certificate for work done upon the street there sought to charge the city, after a reasonable time had elapsed for collecting the assessment out of the lots, with the payment of the work. Mr. Justice PaiNE, in delivering the opinion of the court, says: “We know of no rule of construction, and certainly the counsel cited no case, that could justify a court in thus overriding a plain provision of law. Whoever contracts for this kind of work, or deals in these certificates under such a charter, takes the risk of collecting his money in the manner provided, with a right to resort to the appropriate remedy to compel the officers to whom it is entrusted to discharge their duties; and he cannot come into a court and ask to hold the city liable, in the teeth of a provision Avhich informed him at the outset that the city should in no event be liable.”

These remarks are deemed sufficient to dispose of the question as to any general liability of the city to pay for the work. It must be presumed that the plaintiff contracted with the city with full knowledge of this provision in its charter, which exonerated it from all obligation to pay for such improvements. But it is said that the case made by the complaint does not fall within the provision, for the reason that the work was not ordered to be done at the expense of the adjoining lots. But all the allegations, especially the certificates set out in the complaint, negative this position, and show that the common council attempted to charge the adjoining lots with the expense of the work. Indeed, we find no provision in the charter which authorizes the city to make such improvements except'at tbe expense of lot-owners. Whether the city, in'the absence of this provision, would be liablé for the work, is a question we need not consider.

In Allen v. The City of Janesville, 35 Wis., 403, the city had power under its charter to contract for the improvement of streets at the general expense of the city, and there was no provision exempting it from liability on that ground. In that case it was held liable as a matter of course.

It is objected that the provision exempting the city from liability is invalid, within the doctrine laid down in Durkee v. The City of Janesville, 28 Wis., 464, and Hincks v. The City of Milwaukee, 46 Wis., 559. Rut the principle and reason of these decisions have no application to the case at bar; for all persons contracting with the city to make these improvements 'are chargeable with knowledge of its exemption from liability to pay under its charter. Besides, the provision is a very common one in the charters of the cities of this state. In whatever view, therefore, we regard the case, we are constrained to hold that the complaint states no cause of action.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings.