MacLeod v. City of Washburn

| Wis. | Oct 10, 1922

Owen, J.

Appellant contends that the judgment should be reversed (1) because the interests of the city and of the contractors, whom the plaintiff represented in the actions to set aside the special assessments, were antagonistic, and that plaintiff could not represent both the city and the contractors in those actions; (2) that there was no lawful contract of employment by the city; and (3) that the amount of the recovery is exorbitant.

1. We can see no conflict between the interests of the city and the interests of the contractors in the defense of the action brought to set aside the special assessments. The interests of both the city and the contractors required that the special assessments be sustained. It is argued that the contract between the city and the contractors for the construction of the sewers was void because the contract was entered into before the assessment against the lots and parcels of land fronting or abutting on the work was made, contrary to the provisions of sub. 1, sec. 925 — 216, of the Statutes of 1919, sub. (9), sec. 62.18, of the Statutes of 1921, and that it was in the interests of the contractors to sustain that contract while the interests of the city required that it be declared null and void. This contention entirely overlooks the fact that the validity of the contract was not in any manner involved in the taxpayers’ actions. It was the validity of the assessments and not the validity of the contract that was there involved. The validity of the contract was in no manner tendered by the issues joined and the court was without power to pass upon the validity of the contract and, in fact, did not assume to do so. That the interests of the city and of the contractors in upholding the special assessments challenged in said actions were mutual and identical readily appears by a consideration of sec. 1210d, Stats. 1919, which provides that where special assessments are set aside after the work of constructing any sewer has been done for failure to make a proper assessment of benefits and damages because of failure to observe any provision of law or because of any defect in the proceedings upon which such assessments are based, or because of any provision contained in the contract for doing such work, not authorized by law, the city authorities shall proceed to make a new assessment of benefits and damages in the manner required by law. Such new assessment is made a lien upon the property “and a certificate to that effect shall be issued by the proper city authorities to the holder of the invalid special assessment certificate . . . upon surrender thereof or proof that it has been canceled, . . . and the excess in the amount of such invalid certificate over such new certificate, if any, shall be paid to such holder, or person, out of the proper fund.” Sec. 1210d, Stats. 1919; sec. 75.56, Stats. 1921. The court vacated the special assessment because the contract was made before the special assessments were levied. This constituted a “defect in the proceedings upon which such assessment, certificate, sale or bond” was based and brought it squarely within the provisions of1 sec. 1210cf, which, as we have seen, requires a new assessment, the delivery of a new certificate to the contractors, and payment to them of the difference between the invalid certificate and the new certificate out of the proper fund.

How the interest of the city in sustaining the special assessments challenged in those actions can be any less or any different from that of the contractors is not apparent. Plainly the statute contemplates that the work shall be paid for. If the new special certificate shall not equal in amount the invalid certificate, then the balance shall be paid by the city out of the proper fund. It seems to be assumed that because the city officers failed to do their duty and proceed •with the reassessment, making it necessary for the contractors to invoke the compulsory powers of the court, a diversity of interest thereby arose. In this assumption appellant’s counsel fails to distinguish between the interest of the city and the perverse action of its officers. The fact that the city officers refused to perform their plain legal duty, a duty imposed upon them by the statute as well as by the order of the court, did not give rise to a conflict between the interest of the city and the interest of the contractors. The interest of the city required the making of a bona fide reassessment, and the refusal of the city officers to proceed therewith was contrary to the interests of the city as well as the interests of the contractors, and in their refusal to function they acted contrary to the interests of both. Whether the contract was-void is not before us. Neither was it involved in the actions brought to set aside the special assessments, nor could it in any manner influence the legal duty of the city officers. It is and was at all times an irrelevant consideration. It is plain that there was no conflict of interest between the city and the contractors, and the plaintiff in this action was at liberty to represent the city and the contractors in the defense of the action brought to set aside the special assessments.

2. It is claimed that no lawful contract of employment was entered into between the city and the plaintiff. It is true that the common council took no action looking towards the employment of plaintiff. It was, however, entirely competent for the city, acting through the common council, to employ plaintiff or any other attorney to defend those actions; it being competent for them to enter into such a contract, it was competent for them to ratify it. That they had knowledge of his employment and acquiesced therein is manifest by the resolution adopted by the common council August 3, 1920, discontinuing plaintiff’s services on behalf of the city. This resolution acknowledges his lawful employment by the city and indicates a ratification on the part of the council of the action of the mayor in employing plaintiff to defend the cases on the part of the city. “A municipal corporation may ratify the unauthorized acts and contracts of its agents which are within the scope of its corporate powers, and such ratification is equivalent to previous authority.” Koch v. Milwaukee, 89 Wis. 220, 228, 62 N. W. 918.

3. It is claimed that the amount recovered by the plaintiff is unreasonable. He was employed in and about the defense of ten actions. The complaints challenged the validity of the assessments upon numerous grounds. True, only one action was tried, and similar answers were served in all. The preparation of the case, however, involved a careful investigation of the proceedings leading up to the assessments, a carefully prepared brief, advice to the city authorities in the making of the reassessment, and one day actually devoted to the trial. The trial court found that a charge against all the clients of $500 was reasonable. We do not think this finding can be disturbed. While this was a liberal charge, we think the finding that it was reasonable cannot be set aside.

It is next contended that, granting the charge of $500 to be reasonable, the city should be charged with only one third thereof. The interest ,of the city was equal to the interest of both the contractors, and we think the charge was properly apportioned one half to the city and one half to the contractors. We see no error justifying a reversal, and the judgment should be affirmed.

By the Court. — Judgment affirmed.