81 Wis. 326 | Wis. | 1892
This is a bill in equity to set aside a special assessment to pay for the construction of a sewer and a pavement on the street running in front of the plaintiff’s lots, and to restrain the collection thereof, on the grounds mentioned in the foregoing statement. To state facts sufficient to constitute a cause of action for such equitable relief, it is not enough for the complaint to allege in direct terms the inequality and injustice of such assessment, but it must also allege facts showing such inequality and injustice or going to the groundwork of the assessment. Pratt v. Lincoln Co. 61 Wis. 62; Fifield v. Marinette Co. 62 Wis. 532; Wisconsin Cent. R. Co. v. Asland Co. 81 Wis. 1, 11, and cases there cited. Where, in such a case, the complaint alleges facts showing mere irregularities and failures to comply with some minor statutory requirements, it must be held insufficient, unless it further alleges an offer to pay the amount of such assessments justly chargeable to the property of the plaintiff. Here there is no allegation of any such offer to pay.
Some of the defects in the assessments here relied upon
The principal defect in the assessment here relied upon is the alleged want of notice. It is claimed that the ordinance under which the sewer and pavement were constructed was passed and adopted only seven days after its introduction, instead of fourteen days after such introduction and ten days after the publication of the proceedings of the council showing the same, as required by the original charter. Sec. 1, subch. 6, ch. 16, P. & L. Laws of 1872. But this court has already, in effect, held that that provision is repealed by the act to revise, consolidate, and amend the charter which went into effect March 30, 1889 (chapter 184, Laws of 1889). Smith v. Eau Claire, 78 Wis. 461; Drummond v. Eau Claire, 79 Wis. 97. The question recurs whether the assessments can be maintained under the present charter. The conten
To the same effect are Kentucky Railroad Tax Cases, 115 U. S. 331; Spencer v. Merchant, 125 U. S. 345; Palmer v. McMahon, 133 U. S. 668; Lent v. Tillson, 140 U. S. 316; Fass v. Seehawer, 60 Wis. 535; Baldwin v. Ely, 66 Wis.
The question recurs whether the charter provisions in the case at bar can be sustained upon the principles of law stated. Sec. 21 of subch. V of the present charter provides, in effect, that whenever any improvement chargeable to the property adjacent- thereto shall have been determined upon, the proportion of the costs properly chargeable to each lot subject to contribute to the payment of the same shall be ascertained by the council, and the city clerk shall forthwith issue to each such lot occupant “ a certificate stating the amount assessed and chargeable ” to such lot, and that the same shall, from the time it is so ascertained, be a lien thereon, and entered against such lot in the tax warrant, and be “ collected in the same manner as other tames.” It is stated in the brief that the complaint alleges that no such certificate was ever made or received. Eut we find no such allegation in the complaint, nor any mention of such certificate. Counsel probably intended to be understood as saying that the alleged want of notice was an allegation to the effect that no such certificate was issued as prescribed. Eut this does not answer the rule of pleading already mentioned in such equitable action. We must therefore assume, for the purposes of this appeal, that such certificate was issued as required by the charter. The fact that the amount so determined upon and named in the certificate was, by the charter, to be collected m the same manner as other taxes, necessarily required the giving of notices the same as in the collection of such other taxes. Again, it was re
We are constrained to hold that the complaint does not state facts sufficient to constitute a cause of action.
By the Court.— The order of the circuit court is affirmed.